Price County v. C.W., 2023AP18-FT, District III, 9/6/23 (one-judge decision; ineligible for publication); case activity
Under the specific facts of this case, COA holds that the County was not required to call a medical expert at “Clara’s” protective placement hearing and affirms.
In the fall of 2021, Clara stipulated to a guardianship under Chapter 54. (¶3). As part of the stipulation, the County apparently agreed to withdraw its petition for protective placement and “the parties agreed that an attempt would be made to meet Clara’s needs less restrictively at home.” (Id.). However, the parties recognized that, should Clara’s situation change, the issue of protective placement could be revisited in the future. (Id.).
Several months later, the County re-filed its petition for protective placement and the court held a contested hearing. (¶5). The County called only one witness, the certified social worker who filed the “comprehensive agency evaluation” in support of the County’s petition. (Id.). The court overruled Clara’s objection to the social worker testifying about Clara’s physical and mental health conditions. (¶10). In closing, counsel for Clara argued that the County had failed to present sufficient evidence as it did not call a “medical professional” to substantiate its claim that Clara had a permanent disability. (¶12). However, the court found the evidence sufficient based on its review of “necessary reports and documents on file” and specifically took judicial notice of the fact that Clara had been adjudicated incompetent within the last 12 months in connection with the guardianship petition. (¶13).
On appeal, Clara raises two challenges:
Sufficiency of the Evidence
Clara argues that Walworth County v. Therese B. requires the County, in order to satisfy the clear and convincing burden of proof at a protective placement hearing, to present the testimony of a medical professional. (¶18). She concedes, however, that the witness need not be a physician or psychologist and could be a nurse practitioner. (Id.). COA finds Therese B. distinguishable, however, as that case involved a joint initial guardianship/protective placement hearing and the statute plainly requires the testimony of a medical professional for a guardianship. (¶19). However, “there is no such corresponding statutory requirement for a protective placement order.” (¶20).
While Clara is correct that the circuit court could not merely rely on the finding of incompetency in the guardianship as a basis to enter a protective placement order, COA does not believe the court did so in this case. (¶21). Here, the court took judicial notice of the findings and orders entered in that case, and those findings, in connection with the social worker’s testimony, were sufficient to meet the statutory requirements. (¶¶23-30).
Due Process
Clara argues that using the social worker as a conduit for the opinions of others violated her due process rights under Therese B. (¶32). COA holds, however, there was no violation because the court also had access to the doctor’s report filed in the guardianship action. (Id.). And, while Clara argues that it was error for the court to take judicial notice of that report, COA holds there is nothing objectionable about the court taking judicial notice of its prior findings and order, which “clearly addressed the findings that Clara contends must be based upon medical testimony in this matter.” (¶34). Clara had an opportunity to cross-examine the social worker and could have called the author of the medical report as a witness. (¶35). However, she left the evidence “unrefuted.” (Id.).
