Ozaukee County v. S.S., 2024AP759, District II, 9/11/24 (one-judge decision; ineligible for publication); case activity
In determining whether to continue protective placement under Chapter 55, the County does not need to present an expert witness to establish an individual continues to meet the criteria for placement, and the circuit court may rely on the entire record – not just the record at the annual review hearing – to find grounds to continue placement.
S.S.’s (referred to as “Samuel”) appeal from the circuit court’s order continuing protective placement focused on two legal issues: 1) whether the Court of Appeals could rely on the entire record of Samuel’s case or whether it was limited to evidence introduced at the annual review from which he appealed to determine whether the County met its burden to continue placement; and 2) whether the County was required to present an expert to meet its burden to continue protective placement (no expert testified at the most recent annual review hearing).
The Court found that it was not limited to evidence from the latest annual review to determine whether the County met its burden. The Court acknowledged that an annual review focuses on whether an individual currently satisfies the criteria for protective placement under Wis. Stat. § 55.08(1), not whether they met the criteria at some point in the past. (¶ 9). However, “that focus on an individual’s present needs, capabilities, and condition does not render evidence from prior placement proceedings that concerns those issues irrelevant.” (¶ 9). The Court determined that considering the entire record was not contrary to Watts, when SCOW held that individuals in protective placement are entitled to periodic judicial review of their continued need for placement. (¶ 9).
The Court also concluded the County was not required to present an expert to meet its burden to continue protective placement: “Samuel points to no statute requiring testimony from a medical professional in a continued protective placement proceeding.” (¶ 30). The Court distinguished Therese B., where the Court of Appeals held that the government must present an expert witness to appoint a guardian under Chapter 55, because the statutory provision that governs annual reviews does not require that the reviewer or any testifying witness have medical expertise. (¶ 32).
With the legal issues addressed, the Court found sufficient evidence to affirm the circuit court’s order continuing protective placement. The Court rejected Samuel’s argument that the County did not establish he suffered from a developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacity that rendered him so totally incapable of providing for his care or custody so as to create a substantial risk of harm to himself. (¶ 32) (citing Wis. Stat. § 55.08(1)(c)). The Court cited “multiple psychologists” who diagnosed Samuel with “alcohol-related disorders and other serious mental health conditions” and that one psychologist determined his condition was “likely to remain permanent.” (¶ 33). Although the County did not present any new expert evidence, the Court noted that “there is nothing to suggest that the opinions of the psychologists who previously examined Samuel have grown stale over time or that the alcohol-related and other disorders have materially improved or resolved.” (¶ 33). The Court referred to evidence regarding Samuel’s behavior to find that his condition created a substantial risk of harm to himself: “(1) he continues to require supervision for his safety and well-being; (2) his decision-making continues to be impaired; 3) he is verbally and physically aggressive toward others and ‘engages in self-injurious or other dangerous behavior’; and (4) he is unable to control his mood and behavior.” (¶ 35).
Finally, the Court observed that the circuit court’s oral ruling stated the County met its burden based on testimony presented at the hearing, while its written order was based on the reports and documents on file. The Court considered the discrepancy “noteworthy” because Wis. Stat. § 55.18(3)(e)1 requires the circuit court to cite the information it relied on if it continues protective placement, and encouraged circuit courts to explain on the record that its findings are based, at least in part, on previously admitted documents or prior adjudicative facts and explain why and how it is doing so. (¶ 36).
