Douglas County v. J. M.

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 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. 2022AP2035 Cir. Ct. No. 2019GN50
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE GUARDIANSHIP
AND PROTECTIVE PLACEMENT OF J. M.:
DOUGLAS COUNTY,
PETITIONER-RESPONDENT,
V.
J. M.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Douglas County:
KELLY J. THIMM, Judge. Affirmed.
No. 2022AP2035
¶1 HRUZ, J.1 James2 appeals an order continuing his protective
placement pursuant to WIS. STAT. ch. 55. James argues that Douglas County
presented insufficient evidence for the circuit court to issue the order.
Specifically, James contends the County’s evidence was insufficient as a matter of
law because it was required to present testimony from a medical professional, and
it failed to do so. James separately argues that the County violated his due process
rights by failing to present testimony from a qualified medical professional.
Alternatively, he argues that the evidence was insufficient because the County
failed to present testimony from anyone with personal knowledge of James’ needs
or care.
¶2 We agree with the County that no statute or binding precedent
requires a medical professional to testify in order for a circuit court to continue a
protective placement when there is a prior guardianship order, admitted evidence
in the record that the ward suffers from an incapacity, and the court previously
found that the ward suffers from an incapacity. Thus, the lack of testimony by a
medical professional did not violate James’ due process rights. We further
conclude that the record before the court in this proceeding was sufficient for the
court to order that James’ protective placement be continued. We therefore affirm.
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 his initials.
2
No. 2022AP2035
BACKGROUND
¶3 In February 2020, the circuit court ordered that James be placed
under guardianship and that he be protectively placed. The comprehensive
evaluation submitted with the County’s petitions noted that James had been
diagnosed with dementia. The evaluation was written by Jennifer Paananen, a
social worker at the County’s Department of Health and Human Services, and it
referred to Dr. Isaac Hunt as James’ “attending physician.” The evaluation noted
that Paananen had accompanied James to his neuropsychological testing with
Hunt, wherein Hunt reported James’ diagnosis of dementia.3
¶4 Among other things, the comprehensive evaluation noted that James
was referred to the County in October 2019 after a “noticeable decline in his
cognition over the past few months.” This decline included his mismanagement of
financial, dietary and medical affairs (including his failing to take his medications,
despite him often claiming that he did take them), “dramatic mood shifts, memory
impairments, and concerns for his overall welfare and … isolation.” It also noted
a specific instance where Paananen was at James’ home when James suddenly lost
consciousness and collapsed, hitting his head as he fell, and needed to be taken to
the hospital.
3
The record is unclear as to whether Dr. Hunt’s report was ever admitted into evidence
and whether the circuit court had taken judicial notice of this report at prior proceedings.
Notably, the record lacks the transcript for the hearing wherein we presume Hunt’s report would
have been first introduced into evidence, and the minutes of that hearing do not specify that the
report was admitted into evidence. Regardless, as will be explained below, we do not directly
rely on Hunt’s report in support of our conclusion that the County provided sufficient evidence to
establish that James was in need of continued protective placement. Instead, we rely on
Paananen’s comprehensive evaluation, the County’s annual reports, the circuit court’s prior
findings, and the fact that, on appeal, James does not appear to contest that he has an incapacity,
but only appears to argue that he is not so incapacitated that he needs protective placement.
3
No. 2022AP2035
¶5 In March 2021—following the County having submitted an annual
report pursuant to WIS. STAT. § 55.18 and the circuit court having conducted a due
process hearing—the circuit court ordered James’ continued protective placement.
The annual report noted James’ numerous medical diagnoses (including his
dementia); his verbal outbursts and other increased negative behaviors caused by
his dementia (including a recent physical incident with another resident at his
former care facility); his history of falls and unsteady gait; his need for support on
handling medication, finances and bathing; and his voicing of “suicidal ideations.”
At the conclusion of the due process hearing, the court noted, among other things,
James’ history and meeting of the required elements for a continued protective
placement, James’ expulsions from and denied access to various care facilities,
and James’ urination in heating ducts.
¶6 In February 2022, the County filed another annual petition for
continued protective placement for James, which is the petition at issue in this
appeal. It was again accompanied by an annual report from the County, written by
one of its social workers. That report detailed James’ current condition and issues
with his care and well-being. Among other things, its author noted that James
required: being checked on every thirty minutes “due to his recent increase in
aggression and physical altercations with another male resident”; staff assistance
with his behavior and mood swings; “meal preparation as he is unable to safely
use kitchen appliances”; medication management; and reminders for showering.
The author did state that James is able to independently perform a number of life
tasks.
¶7 In March 2022, the corporate guardian, Twin Ports Guardianship and
Payee Services (Twin Ports), filed an annual report on James’ condition that noted
James had “exhibited challenging behavior.” Twin Ports also reported that James
4
No. 2022AP2035
“had an increase in agitation, [an] inability to manage anger[,] … increased
memory loss over the past year,” and “frequently refuse[d] his medications.” A
guardian ad litem (GAL) was appointed for James, and the GAL submitted an
annual report stating that James was contesting the continued protective
placement, that James “believe[d] he [could] live independently,” and that he
“requested an attorney.” The GAL’s report further stated that James “continue[d]
to need protective placement” and that his “violent behaviors” were escalating.
¶8 In May 2022, a full due process hearing was held at which James
and Jan Cummings, an individual employed by Twin Ports, both testified.
Cummings testified that Twin Ports has served as James’ guardian since his initial
protective placement in 2020. In her role as James’ guardian, Cummings testified
that she is responsible for finding and retaining placement for James and that she
works with the facility where James lives to schedule and arrange medical
appointments and treatment for him.
¶9 Cummings additionally testified that James had been diagnosed with
dementia and that there had been no changes in that diagnosis in the past year.
Cummings noted that James “had increased behavioral disturbances and
impulsivity due to dementia,” which resulted in “altercations with other residents
at the facility [where he was being housed]” and, ultimately, “two or three 30-day
notices to seek alternate placement.” Specifically, Cummings noted that these
prior eviction notices from the facilities were “due to physical aggression” and
“destruction of property.”
¶10 Cummings further testified that prior to James’ protective placement,
he “was not taking his medications correctly” nor was he “eating his meals.” She
explained that James could not cook independently, noting, in part, that he would
5
No. 2022AP2035
fail to refrigerate milk and would keep expired food in his refrigerator. Cummings
expressed concern about James using a stove and stated he “would [probably not]
remember to … turn the stove off.” Regarding James’ housing, Cummings
testified that she did not believe James “would have the follow-through to look at
alternative housing” and that he “doesn’t have the ability, due to the dementia,” to
secure housing on his own. Cummings testified that she believed James requires
“24-hour-a-day supervision.”
¶11 Cummings also testified that she believed James would be at risk if
not protectively placed because he has “poor decision-making capabilities,” does
not “have insight into his degree of dementia,” and “doesn’t understand … the
altercations he has with different residents.” Due to these issues, Cummings stated
that James “needs supervision,” especially regarding his “medication, assistance
with medical appointments … [and] meal preparation.” Cummings further
testified that James “can dress independently,” but he “needs some reminders to
change clothes regularly” and “for showering.”
¶12 James testified that he “does not feel he needs protective placement”
and has “never had issues taking [his] current medications.” Regarding preparing
meals and shopping, James testified he had “done [that] for many years,” and he
would be able to do that on his own. When asked about Cummings’ testimony
that he was diagnosed with dementia, James answered, “False.” James also
testified that he hit another resident “twice” but stated that the other resident
“swung first.” James further noted that he contested “about 80% of what
Cummings has to say,” referred to her as “an outright liar,” and suggested that
both he and Cummings take polygraph tests.
6
No. 2022AP2035
¶13 The circuit court concluded that the County had met its burden of
proof, by clear and convincing evidence, that James continued to meet the
standards for protective placement.4 The court noted that it found Cummings’
testimony credible. In doing so, the court specifically noted the fact that James
had repeatedly been evicted from care facilities, thereby requiring the corporate
guardian to find new placements for him. According to the court, the “problem is,
as we know with dementia, dementia doesn’t get better, it gets worse or stays the
same.” The court further found that James was “certainly not so far gone with
dementia that he’s not able to do certain things,” but the court noted that while in
the community in the past James had “refused some interventions when he needed
[them]. He wasn’t eating his meals [and] he wasn’t taking his medications.”
¶14 In the written order continuing James’ protective placement, the
circuit court prefaced its findings by stating that they were made “[a]fter
consideration of the reports and other documents on file.” James now appeals.
DISCUSSION
¶15 James argues that the County presented insufficient evidence to
establish his continued need for protective placement because the County did not
provide any testimony from a medical professional to establish any of the elements
4
Brief oral argument was presented before the circuit court by all parties, as well as by
the guardian ad litem. Of note, the GAL recommended continued placement, stating that he
would have a pretty big concern that given [James’] history with
behaviors and … striking another resident or getting into a
physical altercation, I certainly would have some concerns if he
were independent in the community that there would be a great
danger of interpersonal issues and problems. And I don’t think
that would be safe or appropriate for him.
7
No. 2022AP2035
in WIS. STAT. § 55.08(1) and that the County’s failure to provide testimony from a
medical professional violated his due process right. Additionally, James argues
that the evidence was insufficient because the County failed to present any
testimony from a witness who had personal knowledge of James’ current
condition.
¶16 Our review of a protective placement presents a mixed question of
fact and law. A circuit court’s findings of fact for a protective placement “shall
not be set aside unless clearly erroneous.” WIS. STAT. § 805.17(2). A finding of
fact is clearly erroneous when it is “against the great weight and clear
preponderance of the evidence.” Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006
WI 46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 530. Whether the evidence supports a
protective placement is a question of law that we review de novo. Coston v.
Joseph P., 222 Wis. 2d 1, 23, 586 N.W.2d 52 (Ct. App. 1998). Whether an
individual has been denied his or her right to due process is a question of
constitutional fact that we review de novo. See State v. Tulley, 2001 WI App 236,
¶5, 248 Wis. 2d 505, 635 N.W.2d 807.
¶17 For protective placement to be ordered, there must be “a
comprehensive evaluation of the individual sought to be protected, if such an
evaluation has not already been made.” WIS. STAT. § 55.11(1). An annual review
is required when a person is protectively placed, and a hearing, including a full
due process hearing, is required if requested. State ex rel. Watts v. Combined
Cmty. Servs. Bd. of Milwaukee Cnty., 122 Wis. 2d 65, 85, 362 N.W.2d 104(1985); WIS. STAT. § 55.18. Holding such a hearing “allows the circuit court to
make informed findings of fact in support of the need for continuation of
placement.” County of Dunn v. Goldie H., 2001 WI 102, ¶32, 245 Wis. 2d 538,
629 N.W.2d 189. The County is also required to submit “a written evaluation” of
8
No. 2022AP2035
the individual that becomes “part of the permanent record of the individual” as a
part of the annual review. Sec. 55.18(1).
¶18 In its annual review, the petitioner must show, by clear and
convincing evidence, that the individual in protective placement continues to
satisfy the following four elements in WIS. STAT. § 55.08(1):
(a) The individual has a primary need for residential care
and custody.
(b) The individual is … an adult who has been determined
to be incompetent by a circuit court.
(c) As a result of developmental disability, degenerative
brain disorder, serious and persistent mental illness, or
other like incapacities, the individual is so totally incapable
of providing for his or her own care or custody as to create
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.
Id.
¶19 After the annual review hearing, a circuit court has three
choices: (1) “order the continuation of the protective placement in the facility in
which the individual resides at the time of the hearing”; (2) “order transfer of the
individual to a protective placement that is the least restrictive environment”; or
(3) “terminate the protective placement.” See WIS. STAT. § 55.18(3)(e). If the
court orders the continuation of protective placement, it is required to “include in
the order the information relied upon as a basis for the order” and must “make
findings based on the standards under [WIS. STAT. §] 55.08(1) in support of the
need for continuation of the protective placement.” Sec. 55.18(3)(e)1.
9
No. 2022AP2035
I. Sufficiency of the Evidence
¶20 James argues that the County presented insufficient evidence for
three of the four elements in WIS. STAT. § 55.08(1).5 Before addressing James’
arguments in this regard, we note his fundamental misapprehension regarding the
evidence upon which a circuit court can rely when determining whether to order
that a protective placement be continued. Namely, we note that all reports and
documents that have been admitted into evidence in the individual’s prior
protective placement proceedings may be relied upon, in addition to any witness
testimony introduced during the individual’s due process hearing. See WIS. STAT.
§ 902.01 (allowing a court to take judicial notice of adjudicative facts); see also
Price County v. C.W., No. 2023AP18-FT, unpublished slip op. ¶¶21, 24 (WI App
Sept. 6, 2023).6 This reality is especially true for documentation 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 WIS. STAT. §§ 55.11(1) and 55.18(1), respectively. See also WIS.
STAT. § 55.12(1). Here, those documents were the comprehensive evaluation
written by Paananen and the County’s February 2022 annual report.
¶21 To the extent the record shows relatively recent opinions from
qualified medical professionals—here, Dr. Hunt’s 2019 dementia diagnosis that
was witnessed by Paananen (as included in Paananen’s report) and was found by
the circuit court in its prior order for guardianship—and there is no evidence that
5
James does not challenge the circuit court’s finding of incompetency, and, therefore,
we address only the other three elements.
6
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).
10
No. 2022AP2035
the opinions therein are stale or that the placed individual’s underlying conditions
or needs have materially changed, the court can rely upon those opinions, subject
to any contrary evidence that is submitted. If the placed individual wishes to
challenge the continuing vitality of such opinions, he or she can request an
independent evaluation under WIS. STAT. § 55.18(3)(b)3., as well as call his or her
own witnesses under WIS. STAT. § 55.10(4)(c).7
¶22 As to James’ threshold argument that the County was required to
present testimony from a medical professional to establish at least some of the
elements in WIS. STAT. § 55.08(1) for an individual facing continued protective
placement, he does not cite to any statute or case directly supporting that notion.
The County argues that there is no authority requiring a medical professional to
testify in support of an order continuing an individual’s protective placement, and
we agree.
¶23 James points to Walworth County v. Therese B., 2003 WI App 223,
267 Wis. 2d 310, 671 N.W.2d 377, which held that “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
7
To be sure, over time, evidence is more likely to become stale—including medical
diagnoses and, perhaps, even findings of permanency—and a placed individual’s conditions or
needs can change, thereby requiring a petitioner to provide updated and more robust information
to the circuit court in order to prove that the individual still continues to meet the elements in
WIS. STAT. § 55.08(1).
11
No. 2022AP2035
each” element.8 Id., ¶13. Therese B., however, concerned an initial protective
placement that occurred alongside a guardianship. WISCONSIN STAT. ch. 55
governs protective placements, while WIS. STAT. ch. 54 governs guardianships. A
medical opinion is required for the appointment of a guardian, but there is no such
corresponding requirement for a continued protective placement order. See WIS.
STAT. § 54.10(2)(b)2; see generally ch. 55. Indeed, nothing in the statutory
requirements for an annual review under WIS. STAT. § 55.18(1)(a) or a hearing
under § 55.18(3) even suggests that the reviewer or any testifying witnesses must
have medical expertise. The legislature could have easily imposed such a
requirement, but it did not do so. Thus, we are not persuaded that Therese B.
requires a medical professional’s testimony at a continued protective placement
hearing to prove that an individual continues to meet the elements under WIS.
STAT. § 55.08(1).
¶24 In sum, neither WIS. STAT. § 55.18 nor controlling case law requires
testimony from a qualified medical professional at each annual due process
hearing, nor do those authorities limit the circuit court to reviewing and relying
upon only the testimony and other evidence from that hearing. There is no
precedent or statutory basis to exclude reports and other documentation that have
been previously admitted into evidence from the circuit court’s consideration of
whether the individual continues to meet the elements for a protective placement.
8
James, in fact, cites Wood County v. James D., No. 2013AP1378, unpublished slip op.
¶14 (WI App Nov. 7, 2013), a case quoting Walworth County v. Therese B., 2003 WI App 223,
¶13, 267 Wis. 2d 310, 671 N.W.2d 377, for this premise. However, we do not find this
unpublished case to be persuasive, we question whether it properly applied Therese B., and we
determine that it is factually distinct from the case at hand. Therefore, we review only Therese B.
in our analysis. See WIS. STAT. RULE 809.23(3)(b) (this court has no duty to distinguish or
otherwise discuss unpublished cases).
12
No. 2022AP2035
As mentioned, this reality is especially true for the statutorily required documents,
such as the written evaluation by the County under § 55.18(1) and the
comprehensive evaluation under WIS. STAT. § 55.11(1). Further, we note that, on
appeal, James does not contest that he is incompetent. He appears to only argue
that his incompetence does not rise to the level of requiring protective placement.
¶25 In his reply brief, James discusses two cases in his attempt to further
argue that a medical professional’s testimony is required to provide sufficient
evidence for a continued protective placement. Both cases are unpublished, and
we note that this court has no duty to distinguish or otherwise discuss either case.
See WIS. STAT. RULE 809.23(3)(b). Regardless, we note that J.C. v. R.S.,
No. 2022AP1215, unpublished slip op. (WI App Feb. 16, 2023), concerned a
problem with the underlying guardianship, which is not at issue here. As already
mentioned, James also cites Wood County v. James D., No. 2013AP1378,
unpublished slip op. (WI App Nov. 7, 2013), which we do not find persuasive. In
particular, the court there never explained why the requirements in Therese B.—
which, again, concerned an initial protective placement that occurred alongside a
WIS. STAT. ch. 54 guardianship proceeding—apply to a continued protective
placement.
¶26 With the foregoing in mind, we note the County’s argument that
Cummings’ testimony and James’ testimony provided sufficient evidence for the
circuit court to conclude that James met the elements for protective placement.
While we agree that there was sufficient evidence in the record for the court to
conclude that James met those elements, we do not agree that Cummings’
testimony—even coupled with James’ testimony—alone was sufficient.
13
No. 2022AP2035
¶27 The record, however, provides additional evidence of James’
condition to supplement Cummings’ and James’ testimony, thereby allowing the
circuit court to determine that James satisfied the four required elements in WIS.
STAT. § 55.08(1). The various annual agency reports and the initial required
comprehensive evaluation collectively contain doctors’ medical opinions and
support the court’s findings that James satisfied the elements for continued
protective placement under § 55.08(1). The court was allowed to rely on the
record and the court’s own previously found adjudicative facts to determine
whether James’ condition continued to meet those elements.
¶28 Despite our recognizing the foregoing, the circuit court failed to
make a record of much of this reliance. We note that we can only infer from the
court’s findings that it relied on documents in the record—namely Paananen’s
comprehensive evaluation, the annual reports on James’ condition, and the court’s
prior finding that James suffers from a degenerative brain disorder—to determine
that James met the elements for continued protective placement, especially as to
the permanency of his condition. This omission gives us pause. As already stated,
a court is allowed to review the documents admitted into evidence and its
previously established adjudicative facts to establish that an individual has met the
elements of protective placement. The court should, however, explain on the
record that it is basing its findings, at least in part, on previously admitted
documents within the record or prior adjudicative facts, and also explain why and
how it is doing so. While we note that the court’s findings here were sufficient,
we urge circuit courts in future cases to make a more complete record of their
reliance on such documents and prior findings within the record when analyzing
whether the petitioner has met its burden to show that an individual continues to
meet the elements for protective placement.
14
No. 2022AP2035
¶29 We now turn specifically to James’ arguments on appeal and the
relevant record. James first challenges the evidence showing that he has a primary
need for residential care and custody under WIS. STAT. § 55.08(1)(a). The
statutory phrase “primary need for residential care and custody” applies to an
individual who has a primary need: “(1) to have his or her daily needs be provided
for in a residential setting; and (2) to have someone else exercising control and
supervision in that residential setting for the purpose of protecting the person from
abuse, financial exploitation, neglect, and self-neglect.” Jackson Cnty. Dep’t of
Health & Hum. Servs. v. Susan H., 2010 WI App 82, ¶¶11, 16, 326 Wis. 2d 246,
785 N.W. 2d 677 (citation omitted).
¶30 James contends that Cummings’ testimony that he needs reminders
“for various tasks” and her concern about James cooking for himself does not
mean that he has such needs. James further contends that even if he has dementia,
that fact alone does not establish a primary need for residential care and custody,
and the County did not provide testimony about “what form” of dementia he has
or “how it impacted his ability to meet his daily needs.” Instead, James points to
the fact that Cummings testified that she knew James was able to bathe and feed
himself, dress himself and use the bathroom by himself.
¶31 James largely fails to engage with the rest of Cummings’ testimony
showing that he does have a primary need for residential care and custody. That
testimony, coupled with the reports admitted into evidence in prior hearings and
prior judicial findings, support the circuit court’s conclusion that James has a
primary need for residential care and custody. Cummings testified that James “has
had increased behavioral disturbances and impulsivity,” multiple “altercations
with other residents,” multiple eviction notices due to “physical aggression” and
“destruction of property,” and she had concerns of fire hazards due to him
15
No. 2022AP2035
probably forgetting to “turn the stove off.” The County’s annual reports stated
that James had verbal outbursts, a history of falls and an unsteady gait, mood
swings, suicidal ideations, and that he is unable to use kitchen appliances safely.
The comprehensive evaluation prepared by Paananen provided evidence of James
previously falling and hitting his head, mismanagement of financial, dietary and
medical affairs; and concerns about his isolation. Thus, the record contained
evidence of James’ need for residential care and custody that went far beyond
concerns about him cooking for himself and needing reminders for various tasks.
There was no evidence suggesting any of James’ needs had decreased.
¶32 Additionally, and as the County points out, James has “a history of
physical altercations against vulnerable adults,” shown in part when he admitted to
hitting another resident. We agree. Both the record and Cummings’ testimony
show this to be true. The circuit court found Cummings’ testimony credible, and
its findings of fact as to this element were not clearly erroneous. The County’s
annual reports noted an increase in aggression and physical altercations with other
adult residents. James himself admitted that, in response to another resident
making an obscene gesture at him at his current residence, “I hit—I hit him twice.
He went down.” We also cannot ignore that James himself established that he has
no insight into his impairments, insomuch as he testified at the due process hearing
that it was “[f]alse” that he had been diagnosed with dementia, contrary to the
court’s findings in that regard. This evidence—along with Cummings’ testimony
and the rest of the documents previously admitted into evidence—was sufficient to
show that James continues to have a primary need for residential care and custody.
¶33 James next argues that the County failed to establish that his
incapacity would result in a substantial risk of harm. See WIS. § 55.08(1)(c).
Citing K.N.K. v. Buhler, 139 Wis. 2d 190, 202, 407 N.W.2d 281 (Ct. App. 1987),
16
No. 2022AP2035
James argues that the “harm envisioned may not be based on mere speculation but
must be directly foreseeable from the overt acts or omissions of the individual.”
James alleges that the “only evidence suggestive of risk of harm is the fact that
[James] allegedly got in a fight and that he was being evicted for it.” Recognizing
that James did concede at the hearing that he hit another resident, James argues
that even if he did get into a fight, “acting in self-defense doesn’t establish that
[James’] actions created a substantial risk of harm to himself or others.”
¶34 James is incorrect that the circuit court’s finding of a substantial risk
of harm is “based on mere speculation.” Both the established record as well as
Cummings’ and James’ testimony show various ways in which James presents a
substantial risk of harm to himself and others due to his dementia diagnosis.
Cummings expressly testified that due to James’ dementia, he would be unable to
secure housing on his own. She further testified that James was not eating his
meals, could not cook independently, had poor decision-making capabilities, and
had issues with physical aggression and getting into altercations with other
residents. Paananen’s comprehensive evaluation described an incident where
James fell and hit his head, as well as his mismanagement of medical, dietary and
financial affairs. The County’s reports from 2021 and 2022 described James’ risk
of falls, his verbal outbursts, and other increasingly harmful behaviors caused by
his dementia. Both of the County’s reports also referenced incidents of James
getting into physical altercations with other residents.
¶35 All of this evidence from Cummings’ testimony, and the record
more generally, is not mere speculation but instead provides a factual basis for a
finding that James presents a substantial risk of harm to himself and others
because he is incapable of providing for himself and is physically aggressive
toward others. It is undisputed that James recently fought someone, as James
17
No. 2022AP2035
conceded during the hearing that he did hit another resident at least “twice.” It is
largely irrelevant that this conduct was purportedly in “self-defense” because it
shows that James has had issues with physical aggression that create a substantial
risk of harm, and the record supports the County’s argument that James has had a
history of this behavior. The circuit court found Cummings’ testimony credible.
Based on her testimony and the established case record, the court could reasonably
find that these risks of harm are present because of James’ dementia.
Accordingly, the evidence was sufficient for the court to find that James satisfies
the element in WIS. STAT. § 55.08(1)(c).
¶36 Relatedly, James argues that “the County presented zero evidence
from a medical professional regarding the nature of [his] condition and whether it
was permanent or likely to be permanent.” Citing again to Therese B., James
argues that the decision to order protective placement is “essentially a medical
question that turns on the meaning of facts interpreted by expert psychiatrists and
psychologists.” See Therese B., 267 Wis. 2d 310, ¶16.
¶37 While James is correct that no medical professional testified at the
latest due process hearing regarding the element of permanency, as previously
mentioned, such medical testimony was not required. Instead, there is ample
evidence in the record of the permanency of James’ condition. The two annual
County reports, the GAL’s reports, and the comprehensive evaluation refer to
doctors’ medical opinions that James’ condition is permanent. In addition, the
circuit court’s permanency finding in the guardianship order support the court’s
current finding that James’ condition is permanent. Additionally, as mentioned
previously, Therese B. concerned both a guardianship and an initial protective
placement and is therefore materially distinguishable from this case. In fact, in
context, the quote that James cites states in full, “In a guardianship and protective
18
No. 2022AP2035
placement proceeding, the finder of fact might make a decision that will result in a
life sentence to a nursing home. That decision is essentially a medical question
that turns on the meaning of facts interpreted by expert psychiatrists and
psychologists.” See id. (emphasis added). The court, in its findings here, was
allowed to rely on adjudicated facts previously found by it and the reports
previously admitted into evidence to determine whether James’ condition was
permanent or was likely to be permanent, and its permanency finding here was not
clearly erroneous.
¶38 Finally, to the extent James advances an insufficiency of the
evidence challenge solely based on Cummings’ purported lack of personal
knowledge regarding James’ condition or experiences at the facility, we reject it.
As explained above, the record as a whole before the circuit court shows that when
the court ruled on the County’s petition for continued protective placement, the
evidence of record in the case was sufficient for the court to determine that James
required continued protective placement. There is no basis for us to conclude that
the court’s credibility finding regarding Cummings’ testimony was clearly
erroneous—regardless of any perceived lack of personal knowledge—especially
given the documentary materials in the record. See State v. Sloan, 2007 WI App
146, ¶21, 303 Wis. 2d 438, 736 N.W.2d 189 (“The [circuit] court is the sole arbiter
of credibility issues and will be sustained if facts in the record support the court’s
conclusions.”).
II. Due Process
¶39 James separately argues that the County’s failure to present
testimony from a medical professional at the hearing violated his due process
rights. Specifically, and again citing Therese B., James contends that because no
19
No. 2022AP2035
medical professional testified, he “was denied his statutory right to cross-examine
[a medical professional] on the nature of the alleged diagnosis,” including whether
that diagnosis meant that James “required residential care,” “caused aggressive
behaviors,” “impacted his ability to perform necessary daily activities,” and
“whether it was permanent or likely to be permanent.” James argues that
Cummings was merely a corporate guardian acting as “a conduit for the medical
opinion of others.”
¶40 The County responds that because there is no explicit right to an
examination by a physician or psychologist as part of the annual review under
WIS. STAT. § 55.18, James was not denied due process. To the extent the County
perceives a categorical rule in this regard, it is slightly incorrect. Namely,
§ 55.18(3)(b)3. requires that if an individual requests an independent review, it
shall be granted. James, however, did not request an independent evaluation.
¶41 James was also entitled to present witnesses at the hearing pursuant
to WIS. STAT. § 55.10(4)(c). James could have called Dr. Hunt, Paananen or one
of the social workers who wrote the annual County reports, or other authors of the
documents in the record. Instead, James chose to leave the evidence in those
documents virtually unrefuted. James was not denied his statutory right to
cross-examine any witnesses; further, he chose to not call those witnesses to
question their opinions and findings—including their continued vitality.
¶42 As to any purported due process violation that occurred due to the
circuit court hearing only Cummings’ testimony, the County responds that James
failed to object during the hearing based on either the foundation or hearsay
20
No. 2022AP2035
grounds now alleged.9 We agree that James failed to object to Cummings’
testimony or her qualifications below and, therefore, has forfeited his argument
about her acting as “a conduit for the medical opinion of others.” See State v.
Counihan, 2020 WI 12, ¶25, 390 Wis. 2d 172, 938 N.W.2d 530 (“Forfeiture is the
failure to make the timely assertion of a right.”). We are especially confident in
this approach given that similar arguments were raised by James’ counsel at the
conclusion of the March 2021 due process hearing; yet, a year later, counsel failed
to object prior to, or during, Cummings’ testimony at issue here. Furthermore, the
circuit court deemed Cummings’ testimony to be credible, and there is no
evidence to dispute that finding, much less show that it was clearly erroneous. See
Sloan, 303 Wis. 2d 438, ¶21.
¶43 More importantly, and as explained above, there is no requirement in
the WIS. STAT. ch. 55 statutory scheme that requires the petitioner to have a
medical professional testify at a full due process hearing for a continued protective
placement. There is no case law mandating such a requirement. As previously
explained, James’ only cited authority—Therese B.—concerned an initial
protective placement (and guardianship), which does require the testimony of a
medical expert. Under the circumstances of this case—namely, a continued
protective placement where James was already subject to a guardianship order and
the circuit court could rely upon other evidence in the record and its prior
findings—we conclude that James’ due process rights were not violated.
9
It was only in James’ closing argument that his trial counsel suggested, in passing, that
there was a concern as to the foundation for Cummings’ testimony or that her testimony was
hearsay. The circuit court had closed evidence at that point, and any objection raised in those
regards was untimely. Both below and on appeal, the real challenge derived from any foundation
concerns is that of the sufficiency of the evidence before the court.
21
No. 2022AP2035
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
22