Defense win: COA reverses order continuing protective placement
La Crosse County v. P.A.E., 2025AP303, 6/18/26, District IV (ineligible for publication); case activity
COA reverses the circuit court’s order continuing PAE’s protective placement on the basis that La Crosse County failed to prove by clear and convincing evidence that PAE was so totally incapable of providing for her own care or custody as to create a substantial risk of serious harm to herself or others.
PAE had been under a guardianship since May 2021, and protectively placed since July 2022, due to her history of schizophrenia, conversion disorder, anxiety disorder, bipolar disorder, and an unspecified cognitive disorder. (¶¶2, 11). PAE contested her placement and requested an independent evaluation and a full due process hearing in May 2024. At the due process hearing, the psychologist who examined PAE before the hearing and filed a report and PAE’s corporate guardian testified. (¶¶3-4).
On appeal, PAE challenges whether the county met the third standard, WIS. STAT. § 55.08(1)(c), which requires proof by clear and convincing evidence that, “As a result of developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others. Serious harm may be evidenced by overt acts or acts of omission.” (¶¶7-8). Under this standard, “[t]he risk of harm must be substantial. . . . Specific harm must be foreseeable . . . .” Zander v. County of Eau Claire, 87 Wis. 2d 503, 514-15, 275 N.W.2d 143 (Ct. App. 1979).
COA summarizes the circuit court’s findings as follows:
Relying on evidence introduced at previous hearings, the circuit court found that P.A.E. had lost significant weight and was living in unsanitary conditions before her protective placement, has significant cognitive deficits, and has poor insight into her mental illnesses and does not understand that she has a mental illness and that she needs to take medication, and that if she does not take her medication, she “puts herself in mortal danger.” In addition, the testimony and report that were implicitly credited by the circuit court show that P.A.E. might neglect to care for herself in the areas of showering and taking her medication; that she might not be “able to consistently provide for herself”; that she might forget or choose not to take her medication; that she might forget to or be unable to attend doctor’s appointments; and that she may otherwise forget things that could lead to “dangerous situations.”
(¶24). The court then concludes that the facts the circuit court found were either not supported by the record or not sufficient to show that PAE met the § 55.08(1)(c) standard as a matter of law.
As to PAE losing weight and living in unsanitary conditions before the protective placement, COA notes that these facts are not supported by any evidence. However, because PAE does not dispute these facts, and “at least one persuasive opinion concluded that the court may rely on reports and documents admitted into evidence in the individual’s prior protective placement proceedings, as well as on the court’s own previously found adjudicative facts[,]” see Douglas County v. J.M., No. 2022AP2035, unpublished slip op., ¶¶20, 27-28 (WI App Nov. 28, 2023), COA assumes the adjudicated facts from PAE’s earlier protective placement proceedings support the court’s findings. (¶26). However, COA concludes that PAE being in a certain condition at one time does not establish a pattern or prove that there is a substantial risk PAE would return to that condition absent a protective placement. Therefore, her prior condition “does not rise to the level of clear and convincing evidence that P.A.E. would create a substantial risk of serious harm to herself or others if not protectively placed.” (¶28).
COA next analyzes the circuit court’s finding that PAE lacked insight into her mental illnesses and was or might fail to take her medication. While the finding that PAE does not understand that she has mental illnesses and that she needs to take medication to address those mental illnesses is not clearly erroneous, COA concludes that the court’s finding that PAE’s failure to take her medication would put her “in mortal danger” is not supported by the record. The county did not present evidence, and the court did not make any findings, as to what medications PAE was taking or what symptoms or behaviors would occur if she stopped taking her medications. Without such evidence or factual findings, there is no basis in the record to conclude that possible medication noncompliance presented a substantial risk of serious harm to PAE or others. (¶29).
COA also analyzes the additional information presented at the due process hearing, despite the circuit court not explicitly addressing it, but still concludes that it was insufficient to meet the substantial risk of serious harm standard. The court concludes that the testimony either goes to another requirement, such as the primary need for residential care and custody under § 55.08(1)(a), does not rise to the level of a substantial risk of serious harm, or is too vague, speculative or conclusory. (¶¶30-35).
Finally, COA references the circuit court’s statement that, in the future, the county would need to present more specific and detailed testimony and evidence in order to develop a record that establishes that PAE would be so totally incapable of providing for her own care or custody as to create a substantial risk of serious harm to herself or others. (¶36).