Racine County v. R.P.L., 2025AP813-FT, 7/30/25, District II (ineligible for publication); case activity
In an appeal from an annual protective placement review, R.P.L. escapes a finding of mootness but loses on the merits.
On appeal, “Robert” asserts the evidence was insufficient with respect to two of the criteria in § 55.08: (1) that he satisfies the dangerousness criterion; and (2) that his disability is permanent or likely to be permanent. (¶9).
Evidence of Dangerousness
In order to continue Robert’s protective placement, the County needed to prove he “is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others” due to “developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities.”
The County’s expert witness filed a report opining that this criterion was satisfied and repeated that conclusion in his testimony. (¶10). He explained that Robert is partially paralyzed as a result of a stroke, that his critical thinking (required to remember taking medication) has been impaired and that he otherwise needs assistance with “activities of daily living.” (Id.). Applying a deferential standard of review, COA holds that the circuit court’s findings with respect to this statutory element are not “clearly erroneous” and therefore affirms. (¶12).
Although COA’s decision focuses on the sufficiency of the lower court’s factual findings, we remind our readers that the issue of whether those factual findings satisfy the legal standard is a question of law subject to de novo review. See Joseph P.: “The issues of whether the evidence satisfies the legal standard for incompetency and whether the evidence supports protective placement are questions of law, which we review de novo.”
Permanency of Disability:
COA acknowledges that this is a “closer question” as the doctor’s testimony was “not as certain” that Richard’s disability was permanent. (¶¶13-14). The doctor acknowledged a “possibility” that Richard may regain certain cognitive abilities and conceded that the County had not provided the specific assessment necessary “to completely map out what his cognitive deficits are and the possibility that they might improve.” (¶13). However, while the record may be imprecise as to Richard’s cognitive impairments, COA finds the record otherwise supports the court’s finding that Richard’s physical impairments are permanent and therefore affirms. (¶14).