Defense Win! COA reverses protective placement order on sufficiency and hearsay challenges
Brown County v. K.B., 2024AP1843, District III, 9/16/25 (one-judge decision; ineligible for publication); case activity
COA agrees with “Kathy” that the county failed to present sufficient evidence establishing that she is in continuing need of protective placement, and reverses the ch. 55 order.
The county filed petitions for guardianship and protective placement of Kathy in early 2023, and sought to continue her placement in 2024. (¶¶2-3). Kathy contested the protective placement and asked for an independent medical evaluation. (¶3). At the hearing, the psychologist who evaluated Kathy and a caseworker testified. (¶¶4-5). In addition, the circuit court admitted a prior caseworker’s report over Kathy’s hearsay objection. (¶¶6-7). The court concluded that Kathy continued to meet the standard for protective placement. (¶8).
Kathy argues that the County failed to present sufficient evidence to support the continuation of her protective placement as to three factors: (1) that she has a primary need for care and custody; (2) that she is so totally incapable of providing for her own care so as to create a substantial risk of serious harm to herself; and (3) that she has a disability that is permanent or likely to be permanent. She also argues that the circuit court erroneously exercised its discretion when it admitted the prior caseworker’s report into evidence. (¶9).
The court agrees that the county failed to prove that Kathy has a primary need for care and custody under § 55.08(1)(a), as there was no evidence presented regarding the services that Kathy needs or those that are available to her. It concludes that the psychologist’s “conclusory statements” about Kathy’s “significant impairments” and “history of being exploited” are not clear and convincing evidence as a matter of law. (¶16).
COA also agrees that there is insufficient evidence to support the circuit court’s conclusion that Kathy poses a substantial risk of serious harm to herself or others under (1)(c), as there were only vague references to Kathy having previously been exploited, and neither witness explained her history of exploitation. Therefore, COA “cannot conclude that her history of exploitation rises to the level of a current substantial and specific foreseeable risk of harm.” (¶17).
On appeal, the county “attempts to fill in some of the missing testimonial details by pointing to evidence contained in” the prior caseworker’s report. (¶18). COA reasons that the report contained multiple levels of hearsay, as it states that the worker contacted multiple staff members and referenced other documents in completing her report. (¶¶20-21). The county concedes that the circuit court’s admission on the basis of the business records exception “was likely not proper” but asserts that the court correctly admitted the report because Wis. Stat. § 55.18(1)(a) requires the county to annually review the status of each ward that is protectively placed and to file that report with the court. (¶22).
COA again agrees with Kathy on this point, as § 55.18(1)(a) is not a rule of evidence, and it has previously held that “in-court testimony is required from the author of [a guardianship] report so the person potentially subject to the guardianship can cross-examine the witness. The same principles must also apply to a contested protective placement petition.” J.C. v. R.S., No. 2022AP1215, unpublished slip op., ¶26 (WI App Feb. 16, 2023). (¶22). “If the legislature had intended for the report to be admitted into evidence at trial as an exception to the hearsay rule, it would have said so. It did not.” Id.
As a result, COA concludes that the circuit court erroneously exercised its discretion when it admitted the report into evidence. And without the report, there is insufficient evidence to conclude that the county met its burden to prove that Kathy has a primary need for care and custody and poses a substantial risk of serious harm to herself or others under § 55.08(1)(a) and (1)(c).