Racine County v. B.L.M., 2023AP757, 11/22/23, District II (ineligible for publication); case activity
Despite a creative challenge to a continued protective placement order, COA rejects any argument that the circuit court lost competency by failing to timely reappoint a GAL in this protective placement appeal.
§ 55.18 lists the required procedures for an annual review of a protective placement order. The statute informs the reader that, after the County files an annual report, “the court shall appoint a guardian ad litem[…].” § 55.18(2). The GAL is then required to perform a series of statutorily-enumerated tasks, including filing a GAL report “30 days after appointment.”
“Bonnie” appeals a 2021 order continuing her protective placement and argues this statutory scheme was not followed. Although the County appears to have properly initiated the annual review, the last order appointing a GAL was issued in 2019. (¶8). Using a plain text analysis, Bonnie argues that the filing of an annual report by the County “triggers” a need to reappoint a GAL for each successive annual review. (¶18). Viewing each annual review proceeding as an isolated event, she argues that the plain language of the statute means that a new appointment order must be issued each year; following the entry of an order extending the protective placement, that appointment order then expires. (Id.). Because the circuit court did not follow this procedure here (although it is undisputed that Bonnie was seemingly never without a GAL), she argues that the circuit court lost competency to extend Bonnie’s protective placement. (¶14).
COA is unsympathetic to this reading of the statute, which it labels “absurd and unreasonable.” (¶18). As to the plain text of the statute, COA finds that the circuit court complied when it appointed a GAL following the filing of “a report” even if that report was not the most recent annual filing. (¶29).
COA also believes Bonnie is incorrect to assume that the GAL appointment somehow expires after a final hearing. Despite acknowledging there is no statutory authority resolving the duration of a GAL order in a Ch. 55 case like this one, (¶16), COA believes an indefinite order is consistent with the general goals of Ch. 55 as well as certain practical realities plus some language in Helen E.F. describing duties that remain for a GAL even after the entry of a protective placement order. (¶21). It also finds support for its reading based on other language in that decision suggesting “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.” (¶32). It also believes Bonnie’s reading can be rejected both because it “would leave a large population of vulnerable individuals unprotected for a majority of the time,” (¶26), and because the (apparently?) persuasive authority of local court rules support COA’s reading. (¶33). COA therefore holds that “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.” (¶33). COA rejects Bonnie’s arguments and affirms. (¶42).
Two other points to tease out from this lengthy opinion. First, as COA recognizes, the standard form generates some confusion as GN-4110 (annual GAL report and recommendation) contains a boilerplate certification that will almost never be accurate given COA’s interpretation–that the report is being filed within 30 days of the GAL’s appointment. COA acknowledges the problem in a footnote, although it does not alter the analysis in the body of the opinion. However, the form language comes directly from the statute, which requires the GAL to file their report “[w]ithin 30 days after appointment.” This inconsistency between COA’s interpretation and the statutory language goes unacknowledged.
Second, the opinion also contains a somewhat confusing discussion of an already confusing topic, that of circuit court competency. Long story short, COA believes that while a competency challenge based on a statutory time limit violation cannot be waived, Bonnie’s challenge isn’t really about a statutory time limit violation; the statute does not say, for example, that a GAL must be appointed within x days. Although COA acknowledges that the law in this area is messy, it ultimately declines to get into the competency weeds given the obvious (?) fact that no “mandatory deadlines” were present in this case. We’ve taken this as our cue to also avoid those same weeds, although readers looking to litigate a Ch. 55 competency challenge may want to start their research here and review the many cases cited and discussed in both the body of the opinion and the footnotes.
