COA: To continue protective placement, county does not need to show prior instances of specific harm to prove substantial risk of future harm.
Ozaukee County v. J.J.W., 2025AP1702, 6/3/26, District II (ineligible for publication); case activity
The COA affirmed the circuit court’s order continuing “Jacob’s” protective placement and determined the County did not need to establish a substantial risk of future harm by presenting evidence of previous harm identical to the harm that is anticipated.
Jacob was diagnosed with schizoaffective disorder and protectively placed in 2020. His placement was continued uncontested in 2021 and 2022 and in 2023 after a summary hearing.
He contested continuing protective placement in 2024 and a due process hearing was held. The manager at Jacob’s assisted living facility testified that he had difficulty focusing due to auditory hallucinations and needs reminders to wear clean clothes, does not prepare his own meals, and had delusions that the FBI and CIA were after him. (¶ 4). A protective services investigator for Ozaukee County testified that, during her interview with Jacob, he had a hard time maintaining conversation because he was preoccupied with auditory hallucinations. She was concerned that, if he cooked for himself, he might walk away from his food and leave it to burn. She also said that if he lived independently, he might not take his medication and walk into traffic. (¶ 5). The circuit court continued protective placement because Jacob’s “internal preoccupations” presented a significant danger that he might stop in the middle of traffic. (¶ 6). While Jacob’s appeal was pending from the 2024 order, his placement was continued in 2025, from which he also appealed.
Jacob argued that the County failed to prove that his condition created a substantial risk of serious harm to himself as required by Wis. Stat. § 55.08(1). Rather, Jacob claimed, the County only speculated that his “internal preoccupations” might create a substantial risk of serious harm and did not provide evidence of a direct and specific foreseeable threat. (¶ 9).
The COA found that the County did not need to prove a risk of future harm by referring to “incidences of previous harm that directly mirror the specific harm anticipated,” which would “eliminate the County’s ability to prevent harms before they occur.” (¶ 13). Rather, the County only needs to show that the harm is “directly foreseeable from the overt acts of the individual.” (¶ 14). The COA concluded that the testimony established that “Jacob suffers from frequent and persistent auditory hallucinations that tend to break his focus and that significant ‘acts’ and ‘omissions’ flow from these disturbances.” (¶ 14). Therefore, the circuit court did not speculate when it concluded “there is a substantial risk Jacob could experience a disorienting or otherwise distracting hallucination while crossing a street, cooking a meal, or while independently managing his medications, and that do so could result in serious harm to himself or others.” (¶ 14).