Brown Cnty. v. S.F.L. (In re Guardianship & Protective Placement of S. F. L.)

• Decision Date: 06 December 2022
• Docket Number: 2021AP975
• Parties: In the matter of the guardianship and protective placement of S. F. L.: v. S. F. L., Respondent-Appellant. Brown County, Petitioner-Respondent,
• Court: Wisconsin Court of Appeals

In the matter of the guardianship and protective placement of S. F. L.:

Brown County, Petitioner-Respondent, v. S. F. L., Respondent-Appellant.

No. 2021AP975

Court of Appeals of Wisconsin, District III

December 6, 2022

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from an order of the circuit court for Brown County: Cir. Ct. No. 2012GN183 TIMOTHY A. HINKFUSS, Judge.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 "Stanley"^[1] appeals an order continuing his protective placement under WIS. STAT. ch. 55. He argues that Brown County failed to present sufficient evidence supporting the order. Additionally, Stanley argues that the circuit court erred by not making specific factual findings on the record regarding his incompetence. We disagree and therefore affirm the court's order.

BACKGROUND

¶2 Stanley has been subject to guardianship and protective placement orders since 2012 and 2013, respectively. Stanley was originally placed in a locked unit because of "safety" concerns. In June 2015, however, Stanley moved to a licensed adult family home. In July 2016, Stanley moved to a communitybased residential facility (CBRF)-his placement at the time of this appeal.

¶3 In December 2020, the County filed another petition to continue Stanley's protective placement at the CBRF. As part of this process, both Sheila DeGrand, with the Brown County Health and Human Services Department, and Dr. Bradley Allen interviewed Stanley, and their resulting reports were filed with the circuit court and later admitted into evidence.

¶4 Stanley contested the continuation of his protective placement at the CBRF, and the circuit court held a hearing on the petition. The County called Dr. Allen and DeGrand as witnesses. Allen testified that Stanley "has been diagnosed in the past with schizophrenia" and "[m]ore recently [with] schizophrenia affective disorder." Both witnesses recommended that protective placement continue at the CBRF because it was the least restrictive environment for Stanley. DeGrand described the services that Stanley received at the CBRF, and she testified that Stanley receives "nursing care due to diabetes that requires blood monitoring as well as medications for his mental illness. He also has staff that arrange medical appointments for him and arrange transportation to those appointments to ensure he makes them. He also has meals provided for him."

¶5 Both witnesses also testified regarding Stanley's leg amputations below the knee, which were necessitated because of infections resulting from Stanley's self-neglect. According to DeGrand, the infections started in 2011 and 2012, respectively, and at least one of the infections occurred while Stanley was "in a supported apartment setting [around] the time the guardianship was started." According to DeGrand, Stanley had "somehow or another ... gone off his medications or declined to take them." DeGrand further testified that, according to some "reports," Stanley was "pouring urine on [his leg wounds] which caused them to become worse." Stanley was also malnourished at the time of at least one of the amputations, according to DeGrand.

¶6 Stanley also testified. He explained that his primary objective was to live in his own apartment. Stanley testified that he could do many daily tasks on his own, including transferring from his wheelchair, cooking for himself, and conducting his own blood sugar testing. At the close of the evidence, Stanley's court-appointed guardian ad litem (GAL) recommended continued protective placement at the CBRF.

¶7 The circuit court ultimately ordered continued protective placement at the CBRF. Specifically, the court found that Stanley "does meet the standards ... for the placement. I do find [the CBRF] is the least restrictive place that he has and that he's residing at." In making its ruling, the court referenced Stanley's amputations and said that it "goes to show that he does need this restrictive placement." The court explained that it was continuing Stanley's placement at the CBRF because: (1) the placement provided Stanley with his medication; (2) it brought him to his appointments and reminded him when the appointments were scheduled; (3) it monitored his blood sugar three times a day; and (4) it provided Stanley with nutritional meals.

¶8 Stanley now appeals. Additional facts will be provided below as necessary.

DISCUSSION

¶9 A county seeking an order for protective placement over an individual must satisfy the requirements of WIS. STAT. § 55.08(1) by clear and convincing evidence. WIS. STAT. § 55.10(4)(d). An annual review of the protective placement must take place if the county continues to seek protective placement. WIS. STAT. § 55.18(1)(a); State ex rel Watts v. Combined Cmty. Servs. Bd., 122 Wis.2d 65, 84 362 N.W.2d 104 (1985) ("We hold that there must be an annual review of each protective placement by a judicial officer.").

¶10 To continue protective placement each year, a county must again satisfy the requirements in WIS. STAT. § 55.08(1). See WIS. STAT. § 55.18(3)(e). As relevant here if an individual subject to a protective placement continuation desires an evidentiary hearing, a Watts hearing must be held. See § 55.18(3)(d); Watts, 122 Wis.2d at 85 ("A full due process hearing should be required whenever the protectively placed individual ... requests it.").

¶11 A circuit court's factual findings at a Watts hearing "will not be overturned unless clearly erroneous." See Walworth County v. Therese B. 2003 WI.App. 223, ¶21, 267 Wis.2d 310, 671 N.W.2d 377 (citation omitted). "An appellate court will search the record for evidence to support the [circuit] court's findings of fact," Fond du Lac County v. J.G.S., Jr., 159 Wis.2d 685, 687-88, 465 N.W.2d 227 (Ct. App. 1990), "not for evidence to support findings the court could have reached but did not," Noble v. Noble, 2005 WI.App. 227, ¶15, 287 Wis.2d 699, 706 N.W.2d 166. "The issues of whether the evidence satisfies the legal standard for incompetency and whether the evidence supports protective placement are questions of law, which we review de novo." Therese B., 267 Wis.2d 310, ¶21 (citation omitted).

¶12 Stanley argues on appeal that the County failed to meet its burden of proof to continue his protective placement. Specifically, Stanley contends the County failed to show by clear and convincing evidence that he met the requirements of WIS. STAT. § 55.08(1),^[2] which, in relevant part, states that a court may order protective placement for an individual who meets all of the following standards:

(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.

¶13 The problem with most of Stanley's appellate arguments is that he is essentially asking us to reweigh the evidence as if we were the circuit court. However, as noted above, our review of factual findings on appeal is limited to determining whether a circuit court's factual findings were clearly erroneous; we do not reweigh the evidence presented to a circuit court. Dickman v. Vollmer, 2007 WI.App. 141, ¶14, 303 Wis.2d 241, 736 N.W.2d 202.

I. Wisconsin Stat. § 55.08(1)(a): Primary need for residential care and custody

¶14 Stanley first argues that the County failed to show that he "ha[d] a primary need for residential care and custody." See WIS. STAT. § 55.08(1)(a). "[P]rimary need for residential care and custody" means "the person must have a primary need (1) to have his or her daily needs 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, ¶16, 326 Wis.2d 246, 785 N.W.2d 677.

¶15 In support of his position, Stanley points to his testimony during the Watts hearing, as well as that of Dr. Allen. For example, Allen testified that Stanley had "been doing well. He actually is active. He participates in activities." Allen also testified that Stanley was stable, did not have "behavioral issues," and was "managing his emotions and interactions adequately." Stanley testified that he normally did his own diabetes testing, maneuvered in and out of his wheelchair on his own, and could cook for himself.

¶16 We disagree with Stanley that the County failed to meet its burden as to WIS. STAT. § 55.08(1)(a). We first note that Stanley's citations to Dr. Allen's testimony are taken out of context. While Allen did testify that Stanley was "doing well," Stanley fails to account for the rest of Allen's testimony, in which Allen stated "Given [Stanley's] history however, I would be concerned for him being alone for any length of time and/or I would be concerned about him going into the community [and] for him to engage in activities that are not within his ability or that he's capable of." Allen further testified that during his examination of Stanley, Stanley scored in the "severe _ deficit range" for his immediate memory. Allen testified that he was concerned over Stanley cooking on his own. ...