Brown County v. K. B.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 16, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1843 Cir. Ct. No. 2023GN3

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE GUARDIANSHIP OF K. B.:

BROWN COUNTY,

PETITIONER-RESPONDENT,

V.

K. B.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
TIMOTHY A. HINKFUSS, Judge. Reversed.

¶1 GILL, J.1 Kathy2 appeals an order continuing her protective
placement pursuant to WIS. STAT. ch. 55. Kathy argues that Brown County failed

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2024AP1843

to present sufficient evidence establishing that she is in continuing need of
protective placement, contrary to WIS. STAT. §§ 55.08(1) and 55.10(4)(d). For the
reasons that follow, we agree with Kathy and reverse the order continuing her
protective placement.

BACKGROUND

¶2 In January 2023, the County filed petitions for guardianship and
protective placement of Kathy, alleging that she suffered from a major
neurocognitive disorder, “including but not limited to [i]ntellectual
[d]isorder/[d]evelopmental [d]isability along with executive function impairment
due to substance use.” An examining psychologist’s report indicated that Kathy
had an extensive criminal history, that she had previously been “working out” a
plan to kill herself, and that she had been physically and sexually assaulted.
Following a hearing, the circuit court entered orders for guardianship due to
incompetency and for protective placement.

¶3 In January 2024, the County, through Caryn Forrest filed a petition
for an annual review of Kathy’s protective placement. Pursuant to WIS. STAT.
§ 55.18(1)(a), an accompanying review report (“review”) was written and
submitted by Forrest. Kathy requested an independent medical evaluation and
asked that the protective placement be terminated.3 The Court appointed
psychologist L. W. Cole to examine Kathy.

2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than her initials.
3
Kathy did not request that her guardianship be terminated.

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No. 2024AP1843

¶4 A due process hearing was held in May 2024, during which Dr. Cole
and Robin Schwartz, a caseworker for the County, testified.4 Cole testified that he
examined Kathy, and he summarily opined that Kathy required continuing
protective placement due to her intellectual disorder and unspecified mood
disorder. Specifically, Cole stated that Kathy has a primary need for residential
care and custody because “she has rather significant impairments that would put
her in danger” and has “a history of being exploited.” When asked if Kathy 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, Cole responded in the
affirmative. Cole opined that Kathy had “moderate to severe” impairment in her
executive functioning and “[e]motional/[b]ehavioral” functioning. Cole’s report
was admitted into evidence without objection.

¶5 Schwartz testified that she worked with Kathy “[f]or the annual
review,” that she “went … to visit with [Kathy] and meet with staff, and [that]
they had reported that due to her previous behaviors she can become very
aggressive and violent toward staff.” When asked how many staff members she
spoke with, Schwartz responded that she spoke to two staff members. Schwartz
then opined that Kathy’s protective placement should continue at her current level
of supervision.

¶6 The County then noted that a written annual review of Kathy’s
protective placement was prepared by Forrest and asked Schwartz if her testimony
was consistent with Forrest’s review. Schwartz stated that her testimony was

4
Prior to taking testimony, the circuit court noted that the annual petition for review was
submitted by Forrest and asked if she was present, to which the County replied, “No. [Forrest] is
no longer with the [C]ounty.”

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No. 2024AP1843

consistent with the review and that the only changes she would make to the review
would be to update it to include information regarding recent incidents. The
County moved to have the review entered into evidence, to which Kathy objected,
asserting that the report was hearsay.

¶7 The circuit court noted that WIS. STAT. § 55.18(1)(a) requires the
County to prepare an annual review of the status of each individual that has been
protectively placed. The court ruled

I’m going to admit the report. And I do recognize that it is
hearsay, but she does work for adult protective services.
The person who wrote the report worked for adult
protective services, the person that wrote the report has
moved on. I think it’s a business exception to the hearsay
rule because the witness is now the case manager of
[Kathy] and she has to know the background and review
the file to be the case manager.

The review was then received into evidence.5

¶8 The circuit court ultimately found that Kathy continued to meet the
standards for protective placement, that she had a primary need for residential care
and custody as a result of a developmental disability and a serious and persistent
mental illness, and that she had a disability that is permanent or likely to be
permanent. The court stated that it based those findings on Dr. Cole’s report and
testimony. The court entered an order continuing Kathy’s protective placement.
Kathy now appeals.

5
The circuit court later clarified that it admitted the review as a “record of regularly
conducted activity” under WIS. STAT. § 908.03(6).

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No. 2024AP1843

DISCUSSION

¶9 Kathy argues that the County failed to present sufficient evidence to
support the continuation of her protective placement. Specifically, she contends
that the County failed to prove that she has a primary need for care and custody,
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 that she has a disability that is
permanent or likely to be permanent.6 Kathy also argues that the circuit court
erroneously exercised its discretion when it admitted Forrest’s annual review into
evidence over her hearsay objection.

¶10 Whether the County presented sufficient evidence to support
Kathy’s protective placement presents a mixed standard of review. See Walworth
County v. Therese B., 2003 WI App 223, ¶21, 267 Wis. 2d 310, 671 N.W.2d 377.
“The circuit court’s factual findings will not be overturned unless clearly
erroneous.” Id. (citation omitted). Whether the evidence satisfies the legal
standard for protective placement is a question of law that we review de novo. Id.

6
Kathy does not contest that she is an adult who has been determined to be incompetent
by a circuit court under WIS. STAT. § 55.08(1)(b).

The County argues that Kathy forfeited her right to challenge the sufficiency of the
evidence regarding whether she has a primary need for care and custody, as she “never asked
[Dr.] Cole about the residential care and custody element and accepted Cole’s entire, voluminous
report subject to any cross[-]examination.”

We reject the County’s argument. WISCONSIN STAT. § 805.17(4) provides, “In actions
tried by the court without a jury, the question of the sufficiency of the evidence to support the
findings may be raised on appeal whether or not the party raising the question has objected in the
trial court to such findings or moved for new trial.” As Kathy correctly notes, her protective
placement hearing constitutes an action that was heard without a jury; therefore, she has not
forfeited her argument to the sufficiency of the evidence. See Waukesha County v. M.A.C., 2024
WI 30, ¶67, 412 Wis. 2d 462, 8 N.W.3d 365.

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No. 2024AP1843

¶11 The petitioner in a WIS. STAT. ch. 55 action must prove the
following by clear and convincing evidence:

(a) The individual has a primary need for residential care
and custody.

(b) The individual is a minor who is not alleged to have a
developmental disability and on whose behalf a petition for
guardianship has been submitted, or is an adult who has
been determined to be incompetent by a circuit court.

(c) 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.

(d) The individual has a disability that is permanent or
likely to be permanent.

WIS. STAT. § 55.08(1); see also WIS. STAT. § 55.10(4)(d).

¶12 Having a primary need for residential care and custody means that
the subject individual must have a primary need “(1) to have his or her daily needs
provided for in a residential setting; and (2) to have someone else exercising
control and supervision in that residential setting for the purpose of protecting the
person from abuse, financial exploitation, neglect, and self-neglect.”
Jackson Cnty. DHHS v. Susan H., 2010 WI App 82, ¶16, 326 Wis. 2d 246, 785
N.W.2d 677. “In determining whether the individual has a primary need for
protective placement, the [circuit] court must consider the availability of treatment
or protective services, and order protective placement only if it is the least
restrictive alternative.” Zander v. County of Eau Claire, 87 Wis. 2d 503, 514,
275 N.W.2d 143 (Ct. App. 1979).

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No. 2024AP1843

¶13 For the purpose of establishing dangerousness under WIS. STAT.
§ 55.08(1)(c), “care” “means that the person’s incapacity to provide for his or her
daily needs creates a substantial risk of serious harm to the person or others.”
Susan H., 326 Wis. 2d 246, ¶17. Similarly, “custody” under § 55.08(1)(c) means
“that the person cannot provide for himself or herself the protection from abuse,
financial exploitation, neglect, and self-neglect that the control and supervision by
others can provide.” Susan H., 326 Wis. 2d 246, ¶17. Further, “[t]he risk of harm
must be substantial. Mere speculation as to difficulties [a subject] may encounter
is not sufficient. Specific harm must be foreseeable to fulfill this requirement.
Furthermore, the foreseeable harm must be serious.” Zander, 87 Wis. 2d at
514-15.

¶14 Kathy contends that the County failed to prove that she has a
primary need for care and custody because the County “simply failed to offer any
evidence of the potential services available to Kathy, let alone why they would be
inadequate to address Kathy’s needs.” Kathy further notes that the only evidence
on this element was Dr. Cole’s testimony that Kathy has a primary need for
residential care and custody because he “believe[s] that she has rather significant
impairments that would put her in danger” and that “[s]he does have a history of
being exploited, and [he] believe[s] she needs protection.” Kathy characterizes
this testimony as being “vague” and offering “no explanation for how and when
Kathy has been exploited, or how the exploitation was tied to her impairments.”7

7
While Dr. Cole’s report was admitted into evidence, the report lacks the sufficient
factual details for us to conclude that Kathy has a primary need for care and custody under WIS.
STAT. § 55.08(1)(a) or that she poses a substantial risk of serious harm to herself or others under
§ 55.08(1)(c).

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No. 2024AP1843

¶15 Similarly, Kathy argues that the County failed to prove that she
poses a substantial risk of serious harm to herself or others under WIS. STAT.
§ 55.08(1)(c) because the County failed to present any evidence that she is
incapable of caring for herself. Kathy notes that the only evidence in this regard
comes from Dr. Cole’s testimony, where in response to the question, “Do you
believe she’s so totally incapable of attending to her own care and custody [that
she] is at greatest substantial risk to herself—of serious harm to herself or anyone
else?” Cole responded, “Yes, I believe she does.” Kathy also notes that Schwartz
testified that Kathy is able to complete all of her own activities of daily living
(“ADLs”).

¶16 We agree with Kathy that the County failed to prove that she has a
primary need for care and custody under WIS. STAT. § 55.08(1)(a) or that she
poses a substantial risk of serious harm to herself or others under § 55.08(1)(c).8
As Kathy correctly notes, there is insufficient evidence in the record to support the
circuit court’s finding that she has a primary need for care and custody, as there
was no evidence presented regarding the services that Kathy needs or those that
are available to her. Doctor Cole’s conclusory statements that Kathy “has rather
significant impairments” and has “a history of being exploited” do not, as a matter

8
Kathy also argues that the County failed to present sufficient evidence to prove that her
disability is permanent or likely to be permanent. Kathy contends that the only testimony on this
issue was Dr. Cole’s statement that “it may be possible for her to develop more stability and
possibly learn independent living skills that could result in a much less restrictive setting.” We
note, however, that in his report, Cole checked a box indicating that Kathy’s disability is
permanent or likely to be permanent. Nevertheless, because we conclude that the evidence
presented at the hearing was insufficient to prove that Kathy has a primary need for care and
custody or poses a substantial risk of serious harm to herself or others, we need not and do not
address this issue. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673
N.W.2d 716 (noting that we need not address all issues when the resolution of one of those issues
is dispositive).

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No. 2024AP1843

of law, rise to the level of clear and convincing evidence. Given these conclusory
statements, we cannot conclude that the current protective placement is the least
restrictive setting for Kathy. See WIS. STAT. § 55.02(1)(a)1. (“The protective
placement system shall be designed to encourage independent living and to avoid
protective placement whenever possible.”).

¶17 Similarly, there is insufficient evidence to support the circuit court’s
finding regarding the risk of harm that Kathy poses to herself or others, as the
record indicates that Kathy is able to complete all ADLs. While there were vague
references to Kathy having previously been exploited, neither Dr. Cole nor
Schwartz explained Kathy’s history of exploitation. We therefore, cannot
conclude that her history of exploitation rises to the level of a current substantial
and specific foreseeable risk of harm. See Zander, 87 Wis. 2d at 514-15.

¶18 The County attempts to fill in some of the missing testimonial details
by pointing to evidence contained in Forrest’s annual review. Kathy responds by
arguing that Forrest’s review was inadmissible hearsay and cannot be relied upon
as competent evidence.

¶19 We examine the circuit court’s decision to admit evidence for an
erroneous exercise of discretion. State v. Stevens, 171 Wis. 2d 106, 111, 490
N.W.2d 753 (1992). A court’s discretionary decision will be upheld if the court
“examined the relevant facts, applied a proper standard of law, and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach.” Appleton Post-Crescent v. Janssen, 149 Wis. 2d 294, 302-03, 441
N.W.2d 255 (Ct. App. 1989).

¶20 Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter

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No. 2024AP1843

asserted.” WIS. STAT. § 908.01(3). Hearsay is inadmissible unless an exception
applies. WIS. STAT. § 908.02. One such exception, colloquially referred to as the
“business records exception,” is found in WIS. STAT. § 908.03(6), which provides:

A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information
transmitted by, a person with knowledge, all in the course
of a regularly conducted activity, as shown by the
testimony of the custodian or other qualified witness, or by
certification that complies with [WIS. STAT. §] 909.02(12)
or (13), or a statute permitting certification, unless the
sources of information or other circumstances indicate lack
of trustworthiness.

However, when a report “contains out-of-court assertions by others, an additional
level of hearsay is contained in the report and an exception for that hearsay must
also be found. That is, the reports cannot establish more than their maker could if
he [or she] was testifying in court on their subject matter.” Mitchell v. State, 84
Wis. 2d 325, 330, 267 N.W.2d 349 (1978); WIS. STAT. § 908.05.

¶21 Forrest’s review states that she contacted multiple staff members and
referenced other documents in completing her review report, and the County does
not assert any hearsay exceptions for this second level of hearsay. Further, we
note that “[r]ecords prepared in anticipation of litigation traditionally have been
deemed outside the reach of the business records exception.” State v. Williams,
2002 WI 58, ¶38, 253 Wis. 2d 99, 644 N.W.2d 919.

¶22 The County concedes that the circuit court’s ruling regarding the
business records exception “was likely not proper” in the context of Forrest’s
review. The County asserts, however, that the court “was still correct in admitting
the annual review” because WIS. STAT. § 55.18(1)(a) requires the County to

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No. 2024AP1843

annually review the status of each ward that is protectively placed and to file that
report with the court that ordered the protective placement.

¶23 We disagree. As Kathy correctly notes, WIS. STAT. § 55.18(1)(a) is
not a rule of evidence. Indeed, this court has previously concluded 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) (citing
R.S. v. Milwaukee County, 162 Wis. 2d 197, 207, 210, 470 N.W.2d 260 (1991)).9
“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.” R.S., 162
Wis. 2d at 207. The County does not cite any legal precedent suggesting that
hearsay that has not been previously subjected to adjudication is admissible at an
individual’s protective placement hearing.10

9
Unpublished opinions authored by a single judge and issued on or after July 1, 2009,
may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).
10
Although the County does not argue these cases in its briefs, we are aware of Douglas
County v. J.M., No. 2022AP2035, unpublished slip op. (WI App Nov. 28, 2023), review denied
(WI App Apr. 16, 2024) and Pierce County v. P.C.A., No. 2024AP1367, unpublished slip op.
(WI App July 1, 2025), in which this court concluded that “all reports and documents that have
been admitted into evidence in the individual’s prior protective placement proceedings may be
relied upon, in addition to any witness testimony introduced during the individual’s [current] due
process hearing.” P.C.A., No. 2024AP1367, ¶31 n.7. We distinguish this case from J.M. and
P.C.A. by noting that the author of the admitted and relied upon reports testified at the protective
placement hearings in those cases, which afforded the subject individual the right to
cross-examine the witness, as is provided by WIS. STAT. §§ 55.10(4) and 54.42(2). See J.M.,
No. 2022AP2035, ¶¶5, 27 (relying, in part, on the County’s 2021 annual report to support the
subject’s continued protective placement and noting that the report was admitted into evidence
following a full due process hearing); see also P.C.A., No. 2024AP1367, ¶¶11, 19, 45 (relying, in
part, on Dr. Miller’s reports to support the subject’s continued protective placement and noting
that Dr. Miller testified at hearings both times that he submitted reports).

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No. 2024AP1843

¶24 Accordingly, we conclude that the circuit court erroneously
exercised its discretion when it admitted Forrest’s report into evidence without
Forrest testifying and over Kathy’s objection. Without the information provided
by Forrest’s report, there is insufficient evidence to conclude that the County met
its burden of proving that Kathy has a primary need for care and custody and
poses a substantial risk of serious harm to herself or others under WIS. STAT.
§ 55.08(1)(a) and (1)(c), respectively. Accordingly, we reverse the order
continuing Kathy’s protective placement.

By the Court.—Order reversed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

12