Racine County v. R. P. L.

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.
July 30, 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. 2025AP813-FT Cir. Ct. No. 2023GN73

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF
R.P.L.:

RACINE COUNTY,

PETITIONER-RESPONDENT,

V.

R.P.L.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Racine County:
TIMOTHY D. BOYLE, Judge. Affirmed.
No. 2025AP813-FT

¶1 GROGAN, J.1 Robert2 appeals from an order continuing his
protective placement. He contends that the County failed to prove by clear and
convincing evidence that: (1) his medical conditions satisfied the dangerousness
criterion in WIS. STAT. § 55.08(1)(c); and (2) his condition is permanent as
required by § 55.08(1)(d).3 This court affirms.

I. BACKGROUND

¶2 In June 2023, Ascension All Saints Hospital filed a petition seeking
protective placement for Robert, who was at that time an inpatient at the Hospital
“after he was found down at home by Meals on Wheels delivery.” That petition
said:

He has a history of a prior stroke, aphasia, seizure disorder
and anxiety disorder. He suffers from severe confusion,
memory loss, poor judgment and poor insight. He cannot
make informed health care or financial decisions. Due to
his cognitive incapacity and care needs, he requires 24-hour
supervision and care in a supervised community setting.

The petition also attested that Robert met “the standards for protective placement
specified in [WIS. STAT.] § 55.08(1)[.]” After a due process hearing, the circuit
court entered orders for guardianship and protective placement.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2023-24). All
references to the Wisconsin Statutes are to the 2023-24 version.
2
This is a pseudonym.
3
Robert also argues that his upcoming annual review hearing does not make this appeal
moot. Because this court decides the merits while the August 9, 2024 order is still in place, it is
not necessary to address the mootness issue. See State v. Lickes, 2021 WI 60, ¶33 n.10, 397
Wis. 2d 586, 960 N.W.2d 855 (“Issues that are not dispositive need not be addressed.” (quoted
source omitted)); Martinez v. Rullman, 2023 WI App 30 ¶5, 408 Wis. 2d 503, 992 N.W.2d 853
(this court decides cases on the narrowest possible grounds).

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No. 2025AP813-FT

¶3 During his annual review with his guardian in June 2024, Robert
reported that he would like “to go back home and that he would like a review in
court.” His guardian then filed a report that in her opinion, Robert continued to
meet the standards for protective placement, which the guardian recommended,
but that Robert requested: (1) “an independent evaluation”; (2) “modification or
termination of the protective placement”; (3) that “legal counsel be appointed for”
him; and (4) “a full due process hearing.” The guardian indicated that Robert
would be able to attend the hearing.

¶4 Steven J. Braam, Ph.D, conducted the independent examination of
Robert. Dr. Braam, who is a licensed psychologist, concluded that Robert’s
“Neurocognitive Disorder due to Cerebral Vascular Accident (CVA); Expressive
Aphasia; [and] Right-side Hemiparesis” caused him to be incapacitated, and this
was “likely to be permanent[.]” Dr. Braam found that Robert’s “impaired critical
thinking skills” prevent him from making “well-informed decisions about his
health care, financial affairs, and his estate.” The doctor also indicated that “less
restrictive interventions” “would not likely eliminate the need for guardianship
and protective placement at this time.” Further, Dr. Braam noted that Robert does
not have the “evaluative capacity” to give consent for medical treatment,
medication, or choose medical providers.

¶5 The report also checked “yes” to the following questions:
(1) “[D]oes [Robert] require placement in a licensed, certified or registered
setting?”; (2) “[D]oes [Robert] have a primary need for residential care and
custody?”; (3) “[D]oes [Robert’s] incapacity render [Robert] so incapable of
providing for his … own care or custody as to create a substantial risk of serious
harm to himself … or others?”; and (4) “[I]s [Robert’s] incapacity permanent or
likely to be permanent?”

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No. 2025AP813-FT

¶6 The circuit court held a due process hearing on August 9, 2024, at
which only Dr. Braam testified. In addition to his testimony, Dr. Braam’s
independent examination report was also admitted into evidence. Following the
hearing, the court found Robert continued to meet the standards for protective
placement and entered orders continuing the guardianship and protective
placement. Robert appeals the order continuing his protective placement.4

II. DISCUSSION

¶7 This court reviews the circuit court’s decision on a protective
placement under a mixed standard of review. Factual findings will not be set aside
unless they are clearly erroneous. WIS. STAT. § 805.17(2). “A finding of fact is
clearly erroneous if it is against the great weight and clear preponderance of the
evidence.” Metropolitan Assocs. v. City of Milwaukee, 2018 WI 4, ¶62, 379
Wis. 2d 141, 905 N.W.2d 784. Whether the evidence meets the requirements for
continued protective placement is a legal question this court reviews de novo.
Coston v. Joseph P., 222 Wis. 2d 1, 23, 586 N.W.2d 52 (Ct. App. 1998).

¶8 A protective placement order requires the County to prove by clear
and convincing evidence that Robert satisfies four criteria: (1) he “has a primary
need for residential care and custody”; (2) he “has been determined to be
incompetent by a circuit court”; (3) he “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” due to “developmental disability, degenerative brain disorder,

4
Robert’s Notice of Intent to pursue postdisposition relief indicated he planned to appeal
from both the guardianship and protective placement orders. However, his Notice of Appeal and
appellate briefs only challenge the protective placement order.

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No. 2025AP813-FT

serious and persistent mental illness, or other like incapacities”; and (4) he “has a
disability that is permanent or likely to be permanent.” WIS. STAT.
§ 55.08(1)(a)-(d); see also Fond du Lac County v. Helen E.F., 2012 WI 50, ¶¶14,
25, 340 Wis. 2d 500, 814 N.W.2d 179.

¶9 Robert challenges only the third and fourth criteria—that the County
failed to prove by clear and convincing evidence that he is dangerous and that his
impairment is permanent.

¶10 The only evidence in the Record as to the two criteria Robert
challenges is Dr. Braam’s testimony and Dr. Braam’s report. Dr. Braam’s report
opines that both criteria are satisfied, and his testimony as to the dangerousness
factor is consistent with his report insomuch as he confirmed that Robert’s
“incapacity render[ed] him so incapable of providing for his own care or custody
as to create a substantial risk of serious harm to himself or others right now[.]” He
explained that Robert is “paralyzed on the right side” of his body, has difficulty
with decision making and communication, and the impairment of critical thinking
skills would adversely affect Robert remembering to take his medications.
Dr. Braam also testified that Robert needs 24-hour supervision in a secure facility
and opined that this type of placement was necessary due to Robert’s need for
“assistance with activities of daily living, food preparation, transportation and
organization of the transportation to medical appointments.”

¶11 The circuit court found that the County proved the dangerousness
criterion, explaining that:

[Robert’s] critical thinking skills have been impaired to the
point where he would not effectively be able to make the
necessary decisions that would assist him in functioning
competently and providing the necessary care and custody
for himself. As such, the Court is also to make a

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No. 2025AP813-FT

determination whether or not his residential care and
custody would be appropriate based upon those findings of
the doctor and I would agree in that his ability based upon
the findings that I’ve just stated and his present condition
does render him incapable of providing for his own care
and custody and would create a substantial risk of serious
harm to himself and others.

In that same vein, the difficulty here is that [Robert]
obviously can communicate to some extent. He can also
effectively understand various topics. The issue is whether
or not he would be able to exercise the necessary critical
thinking which would have him be able to assess
appropriately complex situations relative to his care and
custody of which in the doctor’s opinion under the
circumstances, he does not believe he can.

In that same vein, aside from any cognitive deficiencies,
the larger issue I believe is the physical impairments of
[Robert] and his ability to provide the necessary care and
be able to live independently on his own and provide the
self-care associated with that, which specifically would
include taking the multiple medications he would be
required to take and take those as prescribed. Additionally,
to provide for his own self-care and bathing, providing and
obtaining proper food and taking the same accordingly,
appropriately planning for any necessary treatment and
coordinating his ability to get to and from that treatment.
Essentially overall his inability to properly plan and initiate
those needs that would be required of him, aside from the
cognitive issues I described earlier but more importantly his
physical ailments.

¶12 This court concludes that the Record supports the circuit court’s
findings and that those findings are not clearly erroneous. Robert’s impairments,
both physically and cognitively, demonstrated that—at least at the time the circuit
court issued its orders—he needed the protective placement so that he was not a
danger to himself.

¶13 As for the permanency criteria, the statute requires the County to
prove that the impairments are either permanent or likely to be permanent. On this
factor, Dr. Braam’s report contradicted his testimony. Specifically, although

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No. 2025AP813-FT

Dr. Braam marked the box in the report indicating that Robert’s impairments are
likely to be permanent, his testimony on that issue was not as certain. When asked
if Robert’s impairment is likely to be permanent, the doctor answered:

Well, that’s the difficult question because even though his
impairment might be significant right now, there is a
possibility that he has the ability to regain some of his
cognitive abilities. We don’t know that for sure. He has
never to the best of my knowledge had a
neuropsychological evaluation to completely map out what
his cognitive deficits are and the possibility that they might
improve.

It also -- there also appears to be some time after his
first medical event that he was able to function on his own.
That would speak to his ability to regain some competency
at this point in time, but there’s just fairly large gaps in
information that we don't know. I don’t know that I can
make any prediction about that.

When Dr. Braam was asked the follow-up question about Robert “right now,” his
answer indicated that the protective placement was appropriate at that time.

¶14 The circuit court, in addressing the permanency criterion, found:

The other issue the Court is to determine whether or not
these impairments would essentially be permanent, and at
this point that is a decision that is hard for the Court to
make, particularly given that there’s been testimony by the
doctor that based upon certain training and various
techniques and, again, the testimony was primarily due to
his ability to address the cognitive portion as to his
competency; however, there was never any follow-up as to
his physical impairments which appear, at least in the
Court’s opinion, in the totality of the reports that I’ve seen
would be permanent.

While this is a closer question given the inconsistency between the doctor’s report
and his testimony, the court found that even if some of the cognitive impairments
may improve, the physical impairments, which the court specifically noted
impacted Robert’s ability to care for himself and live independently, are likely

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No. 2025AP813-FT

permanent. Evidence in the Record—namely, Dr. Braam’s report and the fact that
Robert’s impairments have continuously required protective placement since
August 2023—therefore supports the court’s finding. In addition, both Dr. Braam
and Robert’s guardian believed that at least as of August 2024, Robert needed the
protective placement. Accordingly, this court concludes that the Record supports
the circuit court’s decision to continue the protective placement order.

By the Court.—Order affirmed.

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

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