Defense win! Subject has right to be physically present at guardianship and protective placement hearings

Racine County v. P.B., 2022 WI App 62; case activity

Section 54.42(5) and 55.10(4) give a person undergoing guardianship and protective placement the “right to  be present” a the final hearing. Sections 54.44(4)(a) and 55.10(2) further require the county to ensure that the person “attends” the final hearing, unless the GAL waives attendance. In a published decision, the court of appeals holds that these statutes protect the person’s right to be physically present. Attendance by phone or video under §§885.58 and 885.60 does not suffice.

The court set P.B.’s case for a final hearing via a Zoom. The GAL did not waive P.B.’s right to attend in person, and during the hearing P.B. did not object to the fact that she was appearing remotely. The court entered a guardianship and protective placement against her, and she appealed.

There is no doubt that P.B. had the right to be present at her final guardianship and protective placement hearings. See §§54.42(5), (6), and 55.10(4)(applying the right to be present in §54.42(5) to protective placement hearings.  The question was whether she had the right to be physically present.

The court of appeals held that she did. Sections 54.44(4)(a) and 55.10(2) require the petitioner to make sure that the person “attends” the hearing unless the GAL waives attendant. The statutes do not define “attend” but the common, ordinary and accepted meaning is “to be present at” or “to go,” which suggest physical present. Opinion, ¶¶14-15

These statutes say that if the person cannot attend the hearing due to residence in a nursing home, lack of transportation, and so forth, the court must hold the hearing where the person can attend. This again suggests that the contemplates physical attendance. Opinion, ¶16.

While §885.60 permits the use of video conference in Ch. 55 cases, §885.60(2)(a) says that the person “is entitled to be physically present in the courtroom at all . . . dispositional hearings,” and the court’s use of videoconferencing is subject to the right to be physically present. Opinion, ¶17. Section 885.60 derives from a supreme court rule made under §751.12, which in turn prohibits the supreme court from abridging or modifying the person’s right to attend a final 54 or 55 hearing. Opinion, ¶18.

The court of appeals also held that P.B. was not required to object during her own remote appearance. Section 885.60(2)(d) addresses a person’s ability to object to other witnesses attending via video not to her own attendance via video.

Only the GAL could waive P.B.’s right to attend the final hearing in person, and the GAL did not do it. Because P.B. was not physically present at her final hearing, the circuit court lacked competency to issue guardianship and protective placement orders. The court of appeals vacated the orders and remanded the case for a hearing in accordance with the statutes. Opinion, ¶25.

The court of appeals’ analysis of the merits of the issue is excellent but its mandate seems wrong. Per §55.10(1) the circuit court must hold a hearing on a petition for protective placement within 60 days of filing. That 60-day period is long gone. Therefore the circuit court lacks competency to to hold a new final hearing on petitions from 2021. See e.g. Waushara County v. B.G., 2017 WI App 80, ¶31 n5, 378 Wis. 2d 742, 905 N.W.2d 845 (unpublished) (citing Dodge County v. Ryan E.M., 2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592).

Seems like the county has to start over by filing new petitions for protective placement and guardianship.

If you are wondering how this decision applies to hearings held during the pandemic, it doesn’t. The circuit court held this hearing 12 days after COVID restrictions were lifted. Opinion, ¶24.