Milwaukee County DHHS Aging and Disabilities Services v. B. C.

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.
April 7, 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. 2024AP2521 Cir. Ct. No. 2019GN417

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF B.C.:

MILWAUKEE COUNTY DHHS AGING AND DISABILITIES SERVICES,

PETITIONER-RESPONDENT,

V.

B.C.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
CYNTHIA M. DAVIS, Judge. Affirmed.

¶1 GEENEN, J.1 Barb2 appeals from the circuit court’s order
continuing her protective placement pursuant to WIS. STAT. § 55.18. Barb asserts

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. 2024AP2521

that the circuit court lacked competency to order the continuation of her protective
placement because the Milwaukee County Department of Health and Human
Services (the “County”) failed to timely file the annual petition and report
necessary to commence the annual review of her protective placement as required
by § 55.18(1)(a) on multiple previous occasions.

¶2 We conclude that this court’s recent opinion in Department on
Aging v. J.J., 2026 WI App 13, __ Wis. 2d __, __ N.W.3d __, is dispositive of
Barb’s appeal. In J.J., this court concluded that the language in WIS. STAT.
§ 55.18(1)(a) that requires the County to file the annual report by a certain date is
directory. J.J., 2026 WI App 13, ¶2. Consistent with our holding in J.J., we
conclude that even if any of the challenged annual reports were untimely filed, the
circuit court did not lose the competency to rule upon those annual reports or to
enter orders continuing Barb’s protective placement based on those annual reports.

BACKGROUND

¶3 Following a hearing on a petition for a protective placement, Barb
was adjudicated incompetent, and the circuit court entered the original protective
placement order in this case on November 22, 2019 after concluding that the
evidence showed that Barb had a need and met the standards for a protective
placement pursuant to WIS. STAT. ch. 55.3

2
We refer to the appellant in this confidential matter using a pseudonym. See WIS.
STAT. RULE 809.19(1)(g).
3
The circuit court also entered an order for guardianship, but Barb does not contest that
order.

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No. 2024AP2521

¶4 Eleven months after the original order, on October 21, 2020, the
County filed its first report and annual review of Barb’s protective placement.
Barb did not object to continued placement and, following a summary hearing, the
circuit court entered an order on December 11, 2020, finding that Barb continued
to meet the standards for protective placement.

¶5 The County filed its next annual report on November 2, 2021.
Again, Barb did not object to a continuation of the protective placement.
Following a summary hearing, the circuit court entered an order on July 14, 2022,
finding that Barb continued to meet the standards for protective placement.

¶6 No annual report was filed in 2022.

¶7 The County next filed an annual report in Barb’s case on June 5,
2023. At that time, Barb objected to continuing the protective placement orders.
Through court appointed counsel, Barb argued that the statutory timing language
at WIS. STAT. § 55.18(1) is mandatory and that because the County did not timely
file any of the annual reports, the circuit court lost competency over the entire case
and moved to dismiss the protective placement. Although Barb did not object to
the 2020 and 2021 reports, at the hearing on the 2023 report on November 13,
2023, she argued that none of the prior annual reports were timely filed and that
the circuit court therefore lost competency over the case as of the first untimely
filing in 2020.

¶8 During these proceedings, the County conceded that the first annual
report was untimely, but argued that under its interpretation of the statute’s annual
filing requirement, subsequent annual reports were timely and that Barb forfeited
the right to challenge competency by failing to timely raise the argument. The
County also argued that even if the annual reports were not timely, the circuit

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No. 2024AP2521

court did not lose competency because the statutory time limits were directory, not
mandatory.

¶9 The circuit court found that the first annual report was filed late, but
concluded that though WIS. STAT. § 55.18(1)(a) was ambiguous, its time limits
were directory, not mandatory. The circuit court denied the motion to dismiss and
entered an order continuing the protective placement.

¶10 Barb appeals.4

DISCUSSION

¶11 On appeal, Barb challenges the circuit court’s competency over her
WIS. STAT. ch. 55 case because the County failed to comply with a mandatory
statutory deadline.5 Competency refers to a circuit court’s ability to exercise its
authority to decide the specific case before it. See Village of Trempealeau v.
Mikrut, 2004 WI 79, ¶¶2, 9, 273 Wis. 2d 76, 681 N.W.2d 190. When a court does
not have competency over a case, the decisions it makes are erroneous or invalid.
Id., ¶¶2, 14. Whether a circuit court has lost competency is a question of law that
we review independently. Id., ¶7.

4
The County filed a subsequent annual report on November 11, 2024. Barb did not
object to continuation of her placement, and the circuit court entered an order after finding that
Barb continued to meet the standards for protective placement.
5
WISCONSIN STAT. ch. 55 “provides for long-term care for individuals with disabilities
that are permanent or likely to be permanent” through protective services and protective
placements. Fond du Lac Cnty. v. Helen E.F., 2012 WI 50, ¶21, 340 Wis. 2d 500, 814 N.W.2d
179. The purpose of ch. 55 is “to establish those protective services and protective placements, to
assure their availability to all individuals when in need of them, and to place the least possible
restriction on personal liberty and exercise of constitutional rights consistent with due process and
protection from abuse, financial exploitation, neglect, and self-neglect.” Sec. 55.001.

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No. 2024AP2521

¶12 The competency challenge arises under WIS. STAT. § 55.18(1)(a),
which requires that “[n]ot later than the first day of the 11th month after the initial
order is made for protective placement for an individual and … annually
thereafter, the county department shall … [f]ile a report … [and] petition for
annual review[.]” Sec. 55.18(1)(a)1.-3. (emphasis added).

¶13 Barb argues that the circuit court lost competency to conduct an
annual review and any further proceedings in this case when the County filed its
first annual report after the deadline specified in WIS. STAT. § 55.18(1)(a). She
makes the same timeliness and lost competency argument with respect to the
County’s second and third annual reports. Specifically, she contends that the
statute’s use of the word “shall” is mandatory and, therefore, the County’s failure
to comply with the mandatory statutory time limit caused the circuit court to lose
competency to conduct the initial and subsequent annual reviews. Therefore, the
case should have been dismissed, and the circuit court was without authority to
enter any subsequent orders continuing Barb’s protective placement. The County
replies with several arguments but, most relevant here, is its assertion that the
statutory deadline is directory and not mandatory, and therefore the circuit court
did not lose competency.6 We agree with the County.

6
The County argues that Barb’s appeal is mooted by a subsequent order continuing her
protective placement and that Barb forfeited her timeliness-based competency challenges to the
2020 and 2021 annual reports. The parties also contested how the filing deadline should be
calculated after the first annual report. While we remind the parties that the purpose of the annual
review is, in fact, to ensure that a review occurs annually, because our opinion in Department on
Aging v. J.J., 2026 WI App 13, __ Wis. 2d __, __ N.W.3d __, is dispositive on the merits, we
decline to decide these other issues. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514
(Ct. App. 1989) (“[C]ases should be decided on the narrowest possible ground[.]”).

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No. 2024AP2521

¶14 This court recently issued a decision in J.J., wherein we considered
whether the word “shall” in WIS. STAT. § 55.18(1)(a) is mandatory or directory.
J.J., 2026 WI App 13, ¶¶1-2. We began our review by acknowledging that
§ 55.18 was codified in response to our supreme court’s holding in State ex rel.
Watts v. Combined Community Services Board of Milwaukee County, 122
Wis. 2d 65, 83, 362 N.W.2d 104 (1985), that “protectively placed individuals are
entitled to the right of periodic, automatic judicial review that all other civilly
committed persons in Wisconsin have” because, among other reasons, protective
placement orders infringe on a person’s liberties and do not expire on their own
terms. J.J., 2026 WI App 13, ¶¶16-17. Although we noted that the word “shall”
is generally presumed mandatory when it appears in a statute, based on this
statute’s history and purpose, among other reasons, we concluded that the
language requiring the County to file the petition and report by a certain date is
directory. Id., ¶¶2, 13-14, 19-20.

¶15 Accordingly, consistent with J.J., we conclude that the circuit court
did not lose competency to continue Barb’s WIS. STAT. ch. 55 protective
placement.

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No. 2024AP2521

CONCLUSION

¶16 While we again reiterate the importance of timely filings to ensure
that the rights of those subject to WIS. STAT. ch. 55 orders are protected,7
consistent with our opinion in J.J., we conclude that the circuit court did not lose
competency over Barb’s case even if any of the County’s petitions were untimely
filed. Accordingly, we affirm.

By the Court.—Order affirmed.

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

7
Although the time limit in WIS. STAT. § 55.18(1)(a) is directory, “directory should not
be read to imply that the provision is merely discretionary or permissive” because “[t]he
legislature intended that the time limit be strictly followed,” even though it did not intend for the
annual review court to be deprived of competency when a violation of the time limit occurs.
State v. R.R.E., 162 Wis. 2d 698, 715, 470 N.W.2d 283 (1991). Timely annual review of
protective placement orders remains—statutorily and constitutionally—required. Sec. 55.18;
State ex rel. Watts v. Combined Cmty. Servs. Bd. of Milwaukee Cnty., 122 Wis. 2d 65,
83-85, 362 N.W.2d 104 (1985).

7