Daughter lacks standing to challenge mother’s protective placement

Waukesha County DHHS v. M.A.S., 2022AP877, District 2, 3/22/23 (one-judge decision; ineligible for publication); case activity

R.B. (Rose), a daughter of M.A.S. (Mary), filed an appeal of an order granting the County’s petition for a protective placement of Mary. The court of appeals holds Rose doesn’t have standing to appeal the order.

Section 55.20 identifies four persons who may appeal a protective placement order: 1) “the subject of the petition”; 2) “the individual’s guardian”; 3) “any petitioner”; or 4) “the representative of the public.” Rose concedes she isn’t one of these persons, but argues the statute’s statement that one of these persons “may” appeal makes the list nonexclusive. (¶11).

¶12     This court disagrees. As in other statutes, the word “may” is used in Wis. Stat. § 55.20 to confer opportunity or permission to take an action. See Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶32, 339 Wis. 2d 125, 810 N.W.2d 465 (“The word ‘may’ is ordinarily used to grant permission or to indicate possibility.”). In § 55.20, the verb phrase “may be taken” conveys permission (or an opportunity) to appeal a final judgment or order in a chapter 55 proceeding. And though the statute is written in the passive voice, the legislature did not leave the actors who are given that opportunity undetermined. To the contrary, in the latter portion of the statute, it specifically identified the four persons who can bring an appeal. Doing so is evidence of the legislature’s intent not to extend the appeal right to others. See State v. Dylan S., 2012 WI App 25, ¶26, 339 Wis. 2d 442, 813 N.W.2d 229 (“Where a statute lists items included in its purview, omission of an item is evidence that the legislature intended to exclude it.”). This court sees nothing in the text of the statute itself to support Rose’s contention that the legislature’s use of the word “may” signifies its intent to extend the statutory right to appeal to persons other than those identified in the statute.

Rose alternatively argues that she has standing to appeal because she’s an “interested person” under § 55.01(4)(a). Chapter 55 gives “interested persons” specific powers, but the right to appeal isn’t one of them because an “interested person” isn’t in § 55.20’s list of persons who may appeal. (¶¶14-15).

Rose relied on two cases in which interested persons were found to have standing to appeal: Coston v. Joseph P., 222 Wis. 2d 1, 10, 586 N.W.2d 52 (Ct. App. 1998), and Carla S. v. Frank B., 2001 WI App 97, 242 Wis. 2d 605, 626 N.W.2d 330, which in turn relied on Bryn v. Thompson, 21 Wis. 2d 24, 123 N.W.2d 505 (1963). (¶¶17-21). These cases are distinguishable. Coston dealt with interested persons’ right to participate in a guardianship hearing in circuit court; and while the interested persons there appealed a circuit court’s ruling, no one challenged their standing. (¶22). Bryn and Carla S. involved guardianships under ch. 880, not protective placement proceedings under ch. 55, and the ch. 880 provisions have no provision like § 55.20 (¶23).

Rose’s final argument is that she has standing under common law rules because she’s “aggrieved” by the protective placement order. But that requires she show the order bears “directly and injuriously” on her interests and affects her “in some appreciable manner.” (¶¶28-29). She doesn’t explain how the protective placement order of her mother “directly and injuriously” bears on any legally protected interest of hers, nor does she identify any way in which the order infringes on or denies her personal or property rights or imposes any burden or obligation on her sufficient to render her “aggrieved.” While she points to the liberty interest of her mother and her mother’s due process rights, those are issue for her mother to raise and don’t show Rose is sufficiently aggrieved to confer her with standing. (¶¶30-32)