COA holds that stipulation forecloses challenge to lack of expert testimony at protective placement hearing; evidence otherwise sufficient
V.K. v. D.J.F., 2024AP2028, 9/10/25, District II (ineligible for publication); case activity
COA ducks a recurrent issue as to whether expert testimony is required to prove the grounds for a protective placement and otherwise affirms the circuit court’s order granting this privately-filed petition for protective placement.
“David” argues that the evidence was insufficient to satisfy the statutory criteria for protective placement under § 55.08(1). COA disagrees.
David first argues that the evidence was categorically insufficient because no expert medical testimony was presented at the hearing. (¶16). Under these facts, COA holds this argument is forfeited. Here, “David stipulated to the determination that he required a guardianship, and his counsel agreed with the circuit court that the only issue remaining at the final protective placement petition hearing was ‘where the placement should be.'” (Id.).
Did David stipulate? The statement of facts makes the issue somewhat unclear. “Valerie” initiated this case by filing petitions for guardianship and protective placement. (¶3). At a hearing on both petitions, “the parties all agreed that David would no longer be contesting the guardianship but was still contesting the petition for protective placement.” (¶5). One of the attorneys is specifically quoted as summarizing David’s litigation position as “disagree[ing] with the need for protective placement.” (Id.). At the final hearing for the protective placement, the court stated that the only issue was “where” placement should be; the parties apparently agreed with that statement. (¶7).
If the “stipulation” is what provides much of the clear and convincing evidence for this order that results in a constitutionally-significant deprivation of liberty, shouldn’t the record be a little clearer on what, specifically, the parties were stipulating to? And shouldn’t the court have made specific findings, as it does in other case types, as to whether that “stipulated to” evidence satisfied the statutory standard? It isn’t hard, then, to see the seeds of an interesting PFR in this case.
As to the second and third elements–whether David is incompetent and whether his condition satisfies the statutory criteria for dangerousness–COA finds that these elements were “previously found” as part of the guardianship proceedings and, impliedly, that they did not have to be re-proven at this protective placement hearing. (¶17).
With respect to the fourth element, focusing on the permanency of the alleged disability, there were expert reports on file which, while ultimately unnecessary because of the stipulation, would have proven this element if admitted as evidence at the protective placement hearing. (¶18).
In addition to challenging the sufficiency of the evidence, David also argues the circuit court failed to make adequate findings in support of its order for protective placement. (¶19). While COA cautions lower courts that more robust findings should normally be required, the circuit court did enough under these unique facts. (¶23). Here, the parties stipulated to most of the legal issues and informed the court that the only contested issue was where David would be placed. (Id.). In this rare and unusual circumstance, COA holds that the minimal evidence and accompanying findings were sufficient. (Id.)
In County of Dunn v. Goldie H., SCOW held that, given the important due process rights at issue in such a hearing, the court conducting a protective placement hearing “must” make sufficient findings to support its protective placement order, even when conducting a summary procedure. Here, COA holds that because David’s attorney was not substantively contesting the case, the circuit court was not required to develop an overly robust record.