COA affirms continuing protective placement over sufficiency challenge in a “close case.”
Eau Claire County v. R.B.-K., 2025AP1466, 12/16/25, District III (ineligible for publication); case activity
In a “close case,” the COA affirmed continuing protective placement over a challenge to the sufficiency of the evidence that “Rory” was a danger to himself.
Rory was protectively placed in 2021 and Eau Claire County sought to continue his placement in 2025. At the due process hearing, a psychologist testified that Rory has a “mild intellectual disability” and cannot “self-direct his decision making and be charged with making important key life decisions without the assistance of somebody else.” (¶ 3). The psychologist acknowledged that Rory is “relatively independent” in completing his activities of daily living (ADLs), had a part-time job, and was not a risk to leave his group home. However, the psychologist concluded he creates a substantial risk because he is not able to “take himself out of an unsafe situation and put himself in a safe situation.” (¶ 4).
Rory’s social worker testified that he is able to do the physical ADLs, but not “direct” those on his own. For example, she said he cannot adjust if something unexpected occurs. (¶ 5). The social worker was concerned if protective placement was ended and Rory returned to live with his mother because she is not able to meet her basic needs such as paying the electric bill and providing food for them. (¶ 6). The social worker also said Rory’s mother did not provide stable housing, lived with people who had criminal records, and that the initial reason the County sought protective placement was because his mother’s home was unsafe. However, the social worker said Rory’s current placement in a group home was not the least restrictive setting for him. (¶ 6).
Rory’s guardian testified that he is able to “do self-care,” complete his ADLs, access the internet, send emails, use a cellphone, and walk the streets around his residence. But she said he might get confused in an emergency. (¶ 7).
Rory testified that he wakes up, showers, and cooks on his own and that he works at a diaper factory four days a week. He said he preferred to live with his mother but wanted to live on his own “[w]hen I’m ready.” Rory said he needed to be more “independent,” pay his bills, and drive well before he could live by himself. (¶ 9). When asked what he would do if there was a fire in his home, Rory said he would use the fire extinguisher and call 9-1-1. When asked what he would do if he missed the bus that takes him to work, Rory said he would wait for another bus or somebody would take him to work. (¶¶ 10-11).
The circuit court found that Rory has a permanent developmental disability, does not pose a substantial risk of harm to others, but presented a substantial risk of harm to himself. The circuit court ordered that protective placement be continued and directed the County to reassess his placement in a less restrictive environment. (¶ 14).
On appeal, Rory argued the County did not meet its burden to show he is at substantial risk of serious harm because it could “only point to vague, speculative concerns that do not meet the statutory standard.” (¶ 16).
The COA considered Rory’s a “close case” but determined the evidence was sufficient to continue protective placement. The COA considered Rory “at a substantial risk of serious harm to himself without protective placement because he is unable to provide for his basic needs independently and is unable to handle dangerous situations appropriately.” (¶ 19). The COA noted that Rory testified he would return to living with his mother if protective placement was terminated, “which was the same environment that initially prompted his protective placement.” (¶ 20).
The COA did not find the psychologist’s testimony speculative because he related his opinions to “a foreseeable circumstance based on Rory’s history: living with his mother in an unsafe environment and being unable ‘on his own to take himself out of an unsafe situation and put himself in a safe situation.’” (¶ 21).
Finally, the COA considered that Rory’s answers to hypothetical questions at the due process hearing showed that he “has not sufficiently developed the executive functioning necessary to make decisions in unexpected or emergent situations. He essentially stated that he would look to others for help.” (¶ 26). The COA rejected Rory’s argument that the County must identify a specific harm likely to arise if protective placement was not continued. Although the harm must be “directly foreseeable from the overt acts or omissions of the individual,” Wis. Stat. § 55.08(1) does not “require clairvoyance.” (¶ 29).