Douglas County v. J.M., 2022AP2035, 11/28/23, District 3 (one-judge decision; ineligible for publication); case activity
“James” was subjected to a guardianship under ch. 54 and a protective placement under ch. 55 in 2020. He had annual reviews of placement in 2021 and 2022; the last one is the subject of this appeal. James argues that the county was obligated to put on medical expert testimony to meet its burden to show, by clear and convincing evidence, that he meets three of the elements for a protective placement (he does not dispute that he is an adult who’s been found incompetent, the remaining element). The court of appeals delves into the record of past hearings and holds that these older filings fill in the gaps. But isn’t the point of a due-process (Watts) review to determine how the person is doing now?
At the 2022 hearing, an employee of James’s corporate guardian testified that James had previously been diagnosed with dementia, and averred that there had been no changes in that diagnosis in the preceding year. She said James was increasingly impulsive, had engaged in physical aggression with other patients, often refused medication, would not eat meals, and could not cook for himself. (¶10). She also said he did not believe he had dementia and needed 24-hour supervision, though he could do things like dress himself. (¶11). James, on the stand, said the guardian’s testimony about his diagnosis was “false” and testified that he had no problem managing his affairs. (¶12). The circuit court found that James’s placement should continue.
James argues that the county was obligated to put on medical evidence to show that he has a primary need for residential care, that a serious mental incapacity makes him incapable of caring for himself, and that this incapacity is likely permanent. The substance of the court’s response is that there was such evidence: it was just introduced at prior hearings:
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). 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.
(¶20).
Whoa there. Again, these are due process hearings. Is it really James who has a “fundamental misapprehension” about what procedures will suffice to deprive him of basic freedoms? Doesn’t the due process right to notice and hearing involve a reasonably clear view–at the hearing–about the evidence the protectively-placed person must respond to? These are placements that, by their nature, may go on for decades; is it really fair game for the court to fill in any gaps in the current hearing by thumbing through the file and the hearings of yesteryear? The court of appeals addresses this question–just a bit–in a footnote suggesting that in some unspecified conditions, prior evidence will be “stale.” But that doesn’t solve the problem of continued placement based on a lengthy record that can’t reasonably be addressed in the–often rather brief and slipshod–annual hearings. As to those hearings the court of appeals’ description of James’s doesn’t instill confidence:
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.
(¶28). Well, they’ve been urged!
It should be noted that this decision follows at least one other unpublished but citable court of appeals decision reaching the opposite conclusion: that medical testimony is necessary at a Watts hearing:
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.
