COA finds sufficient evidence of dangerousness and affirms protective placement
Brown County v. M.S., 2025AP1532, 2/3/26, District III (ineligible for publication); case activity
In yet another appeal focusing on Chapter 55’s dangerousness criterion, COA holds that while the County could have done a better job at this hearing, the evidence passes muster on appeal.
On appeal from an initial order for protective placement, “Matthew” argues that the County failed to satisfy the standard for dangerousness under § 55.08(1)(c). (¶14). He claims the evidence was conclusory and failed to evince the necessary causal relationship between his disabilities and a foreseeable risk of serious harm. (¶15). COA disagrees. “While [the examiner’s] hearing testimony may have consisted of general, statutory language, her ultimate, expert opinion was that Matthew’s incapacities create a substantial risk of serious harm. Importantly, that opinion is supported by specific facts from both her report and [the social worker’s] report.” (¶16). Here, the report states that Matthew is a “liver and kidney transplant recipient,” that he drinks alcohol, has a history of excessive alcohol consumption, and has a history of not taking his antirejection medications. (¶17). While Matthew argues that this evidence is insufficient because the record does not show he has, in fact, been harmed by these alleged behaviors, COA finds that the testimony sets forth a “valid basis upon which to conclude that a substantial risk of serious harm is present.” (Id.).
There was also evidence presented that Matthew struggles with activities of daily living and hygiene. (¶21). Relying on an unpublished decision of COA, Matthew argues “that the failure to provide for one’s own care does not rise to the level of a substantial risk of serious harm.” (¶20). While COA agrees the record could have been more robustly developed on this point and agrees “that concerns for his hygiene,
alone, may not rise to the level of presenting a substantial risk of serious harm,” it ultimately concludes that “the evidence presented at the hearing rose far above merely showing that he is unable to provide for his own care.” (¶21). Here, there were particularized concerns about his memory, possible dementia, manic behaviors, and suicidal statements. (Id.)
“While any one of these behaviors, alone, might not satisfy the requirement that Matthew’s incapacities create a substantial risk of serious harm, the collective weight of each of these concerns satisfies that burden.” (¶22). COA affirms.
We write briefly to draw the reader’s attention to footnote seven of the decision, wherein COA notes that Matthew has tried to develop a D.J.W. argument in this protective placement appeal by claiming that “the circuit court failed to make specific factual findings to support its protective placement order.” (¶12 n.7). COA finds the claim undeveloped and finds D.J.W. limited to Chapter 51 cases.
However, the requirement for specific findings in such cases predates SCOW’s decision in D.J.W. For example, in Zander v. County of Eau Claire, a case involving guardianship and protective placement, COA held that:
To facilitate review on appeal, specific findings should be made as to whether [the person] was incapable of caring for himself, or merely unwilling to do so; which rights [the person] is incompetent to exercise and under what circumstances; whether [the person] was capable of making a knowing and voluntary choice regarding his drinking when he was sober; what specific needs of [the person] made protective placement in a locked nursing home the least restrictive alternative; what substantial risk of serious harm [the person] presented, and whether [the person’s] disability was permanent or likely to be permanent. These findings must be made on the evidence presented at the hearing, and not from sources outside the record.
Likewise, County of Dunn v. Goldie H., a case involving an annual review hearing, also speaks to the need for specific and detailed findings.