Monroe County v. H.K.B., 2024AP1305, District 4, 1/16/25 (one-judge decision; ineligible for publication); case activity
On appeal from the two most recent Watts review hearings, the COA concludes that there was insufficient evidence for the protective placement order because the County failed to prove that H.K.B. was “so totally incapable of providing for . . . her own care or custody as to create a substantial risk of serious harm to . . . herself or others,” as required by § 55.08(1)(c).under Wis. Stat. § 55.08(1)(c).
The court relies (for its persuasive authority) pretty heavily on Outagamie County DHHS v. L.C.E., No. 2023AP929, unpublished slip op. (WI App June 4, 2024), which dealt with essentially the same issue. (See our post on L.C.E. here). At the Watts hearings, the county presented testimony from Dr. Dal Cerro only.
To meet the requirements of § 55.08(1)(c), “The risk of harm must be substantial. Mere speculation as to difficulties [a ward] may encounter is not sufficient. Specific harm must be foreseeable to fulfill this requirement. Furthermore, the foreseeable harm must be serious. . . . [M]inor accidents, injuries and illness are not sufficient to satisfy this requirement.” Zander v. County of Eau Claire, 87 Wis. 2d 503, 514-15, 275 N.W.2d 143 (1979). Speculative and vague testimony that an individual will be at risk of being taken advantage of, is vulnerable to abuse, or that there are concerns they might not be able to care for themselves, are not sufficient.
Dal Cerro testified that the risk to H.K.B. was that she is “not able to provide for her own needs or her own safety; and then she’s also vulnerable to the influence of others which works against her best interest, and . . . she has not been able to manage without the level of supports represented by residential care and custody.” (¶12). He also testified that she is “just susceptible to people telling her what to do[.]” As a result, the COA concluded:
that Dal Cerro’s testimony is not sufficient to show that H.K.B. presents a substantial risk of a specific, foreseeable, and serious harm to herself or others. Dal Cerro testified generally that H.K.B. was not able to provide for her own needs or safety, that she was vulnerable to the influence of others, and that historically H.K.B. “ha[d] not been able to manage” without residential care and custody. However, this testimony is vague and does not identify any specific harm that is directly foreseeable or serious, or of which there is a substantial risk. Because Dal Cerro’s testimony lacks this specificity, it does not sufficiently show that H.K.B. presented a substantial risk of a serious and foreseeable harm under WIS. STAT. § 55.08(1)(c).
(¶13). Given its decision on this issue, the COA does not reach H.K.B.’s argument that the county failed to provide sufficient evidence that H.K.B. continued to have a primary need for residential care and custody under § 55.08(1)(a), or that the circuit court failed to make adequate findings. The COA also assumes without deciding, that Dal Cerro’s report cannot be relied on to uphold the order because H.K.B. made this argument but the county did not respond to it and therefore conceded for purposes of this case. (¶15 n.5).
