Ozaukee County v. J. J. W.

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.
June 3, 2026
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. 2025AP1702 Cir. Ct. No. 2020GN25

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE PROTECTIVE PLACEMENT OF J.J.W.:

OZAUKEE COUNTY,

PETITIONER-RESPONDENT,

V.

J.J.W.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Ozaukee County:
SANDY A. WILLIAMS, Judge. Affirmed.
No. 2025AP1702

¶1 NEUBAUER, J.1 Jacob2 appeals from an order of the circuit court
continuing his protective placement. Because the record supports the circuit
court’s order, this court affirms.

¶2 In 2020, Ozaukee County (the County) petitioned for protective
placement of Jacob. The County’s examining psychologist, Dr. Michael Kula,
interviewed Jacob and filed a report with the circuit court diagnosing him with
schizoaffective disorder. The court ordered protective placement, and Jacob did
not appeal.

¶3 The County petitioned for annual review of the protective placement
in 2021 and again in 2022. Jacob did not contest either of these petitions, and the
circuit court continued Jacob’s protective placement. Then, in 2023, the County
petitioned for a third annual review. After Jacob withdrew his request for a full
due process hearing, the court conducted a summary hearing at which the court
found that Jacob continued to meet the standards for protective placement.

¶4 In 2024, the County again petitioned for annual review of Jacob’s
protective placement. Jacob contested continued placement, and the circuit court
held a full due process hearing. Talika Smothers, a manager at Jacob’s assisted
living facility, testified Jacob has difficulty maintaining his focus due to auditory
hallucinations and needs frequent redirection from staff. She testified Jacob needs
reminders to wear clean clothing, does not prepare his own meals, and has
delusions that the FBI and the CIA are after him.

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
For ease of readability, we utilize “Jacob” as a pseudonym.

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No. 2025AP1702

¶5 Katie McCormick, a protective services investigator for the County,
interviewed Jacob and testified that, during the evaluation, Jacob “had a hard time
even maintaining conversation” due to being preoccupied with auditory
hallucinations. She stated she was concerned that if Jacob were to cook for
himself, he might “walk[] away from [his] food leaving it to burn.” She also
testified she “would be concern[ed] if [Jacob] were living by himself with no
supervision” because, due to him being preoccupied with auditory hallucinations,
Jacob may lack the “ability to take his medication independently,” and may
“walk[] into traffic.”

¶6 The circuit court ordered a continuation of Jacob’s protective
placement. The court found Jacob’s internal preoccupations presented a
significant danger and expressed concern Jacob might “stop in the middle of
traffic or head out in traffic not being aware of cars.” Jacob subsequently filed the
instant appeal from that order. Subsequently, the County filed for a fifth annual
review in August 2025. Jacob obtained counsel, an independent medical
evaluation, and contested placement at a full due process hearing. The court found
Jacob continued to meet the standards for protective placement and ordered his
placement continued. During the pendency of the instant appeal, Jacob also
appealed that order.3

¶7 A circuit court may order a person protectively placed if he or she
(1) “has a primary need for residential care and custody”; (2) “is an adult who has
been determined to be incompetent by a circuit court”; (3) “[a]s a result of …
serious and persistent mental illness … is so totally incapable of providing for his

3
Case number 2026AP928.

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No. 2025AP1702

or her own care or custody as to create a substantial risk of serious harm to himself
or herself or others”; and (4) “has a disability that is permanent or likely to be
permanent.” WIS. STAT. § 55.08(1). The County must prove each of these
elements by clear and convincing evidence. WIS. STAT. § 55.10(4)(d).

¶8 Whether a circuit court properly ordered a protective placement is a
mixed question of law and fact. Coston v. Joseph P., 222 Wis. 2d 1, 22-23, 586
N.W.2d 52 (Ct. App. 1998). The court’s factual findings will not be disturbed
unless clearly erroneous, but whether the evidence satisfies the statutory elements
is a question of law this court reviews de novo. Id.

¶9 On appeal, Jacob asserts only that the County failed to prove the
third element, namely, that Jacob “is so totally incapable of providing for his …
own care or custody as to create a substantial risk of serious harm to himself … or
others.” WIS. STAT. § 55.08(1).4 Specifically, Jacob argues the County “merely
provided speculation” that Jacob’s internal preoccupations might create a
substantial risk of serious harm and failed to provide evidence of a direct and
specific foreseeable risk.

¶10 The circuit court did not err when it concluded the County proved by
clear and convincing evidence that Jacob presents a substantial risk of serious
harm to himself. Smothers, a manager at Jacob’s residential facility, testified she
interacts with Jacob “everyday” [sic]. She stated that, despite Jacob’s recent
improvements, “he [is] still not focused” and that he requires frequent redirection
from staff. When Jacob gets dressed, staff has to repeatedly direct him to not wear

4
The parties dispute whether this appeal is moot. We assume without deciding it is not
and address the merits.

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No. 2025AP1702

the same, dirty clothes. Jacob frequently “[has] his clothes everywhere in [his]
room[,]” and, until staff repeatedly intervenes, Jacob will “put[] the dirty clothes
in [his] drawers instead of in his hamper.”

¶11 Smothers testified that when Jacob goes for walks he will “go find
little [cigarette] butts on the ground and get lights[,]” despite his doctor’s orders
not to use nicotine products. When asked how much of a focus seeking cigarette
butts is for Jacob, Smothers responded Jacob is focused on cigarettes “all day
everyday … [t]hat’s all the think[s] about and talk[s] about.” She explained that
the reason for Jacob’s difficulty with focusing appropriately is his frequent and
persistent auditory hallucinations, during which he will “hear people talking to
him from the walls” who are “out to get him.”

¶12 Smothers testified that when Jacob “want[s] to cook something,”
staff is “right there to assist him with it … making sure … he doesn’t burn
hi[m]self.” She expressed concern that Jacob cooking “with fire or heat”
unsupervised might be dangerous because his focus could be disturbed by his
auditory hallucinations. McCormick, the County’s adult protective services
investigator, expressed a similar concern that Jacob’s “internal[] preoccup[ation]
with those voices … would be a danger if he were in the home cooking food,
walking away from that food leaving it to burn.” Additionally, McCormick
expressed concern “about [Jacob’s] ability to take his medication independently.”

¶13 This court does not agree with Jacob’s assertion that the testimony
provided during the due process hearing constituted mere speculation insufficient
to establish substantial risk of serious harm. Jacob seems to suggest, for example,
that because “no witness testified that Jacob had ever endangered himself or others
while cooking[,]” the County’s assertion that Jacob could harm himself or others

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No. 2025AP1702

by cooking unsupervised is completely unsupported by the record. However, it
cannot be that the County can only prove a risk of future harm by reference to
incidences of previous harm that directly mirror the specific harm anticipated.
This understanding of the risk of harm element is unsupported by law, and its
application would eliminate the County’s ability to prevent harms before they
occur. The circuit court did not err.

¶14 To prove a substantial risk of serious harm, the County need only
demonstrate “[t]he harm envisioned … [is] directly foreseeable from the overt acts
or omission of the individual.” K.N.K. v. Buhler, 139 Wis. 2d 190, 202, 407
N.W.2d 281 (1987). The totality of the testimony from both Smothers and
McCormick demonstrated 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.5 Because of these hallucinations, staff
takes care to directly supervise Jacob whenever he is engaged in an activity that
could pose a risk of harm if Jacob were to become unfocused or distracted. It is
not “mere speculation” to conclude that 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
doing so could result in serious harm to himself or others. For the foregoing
reasons, the circuit court did not err when it concluded the County proved the
statutory elements by clear and convincing evidence.

5
McCormick testified that, when she interviewed Jacob, he “had a hard time even
maintaining conversation and would stop mid-sentence, turn his head as if listening to something
else, and then shake his head and … start talking to me again.” (Emphasis added).

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No. 2025AP1702

By the Court.—Order affirmed.

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

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