Pierce County v. P. C. A.

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 1, 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. 2024AP1367 Cir. Ct. No. 2021GN14

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE PROTECTIVE PLACEMENT OF P. C. A.:

PIERCE COUNTY,

PETITIONER-RESPONDENT,

V.

P. C. A.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Pierce County:
ELIZABETH L. ROHL, Judge. Affirmed.

¶1 HRUZ, J.1 Piper2 appeals an order continuing her protective
placement pursuant to WIS. STAT. ch. 55. Piper argues that Pierce County failed to

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. 2024AP1367

present sufficient evidence that she is in need of continued protective placement.
For the reasons that follow, we disagree with Piper and affirm the order.

BACKGROUND

¶2 Piper’s protective placement began in 2021, when the County filed
petitions for her permanent guardianship and protective placement after Piper was
hospitalized due to a fall that prompted healthcare providers to recommend that
she be transferred to an assisted living facility. The providers said that Piper
needed help with activities of daily living (ADLs) and protection from self-harm.
Piper was examined by a physician, Dr. Jackson Long, who filed a written report
opining that Piper suffers from serious and persistent mental illnesses—
specifically, alcohol abuse3 and depression—and that her mental illnesses were
likely to be permanent. Long concluded that Piper required protective placement,
that she had a primary need for residential care and custody, that her incapacity

2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than her initials. We do the same for Piper’s significant other.
3
Doctor Long categorized Piper’s alcohol abuse as being a serious and persistent mental
illness. However, in its oral ruling, the circuit court stated,

[Long] indicated in his medical report that [Piper’s impairments]
were due to a serious and persistent mental illness, indicating
depression as well as alcohol dependence…. [T]he legal
definition, which is not necessarily something Dr. Long would
be tuned into, would categorize the alcohol dependence under
the other like incapacities, and so I think on that basis, the
testimony would be for both serious and persistent mental illness
as well as other like incapacities.

We note that WIS. STAT. § 55.01(6v) explicitly states that the definition of “serious and persistent
mental illness” excludes “a primary diagnosis of a developmental disability or of alcohol or drug
dependence.” Piper does not raise any arguments regarding Dr. Long’s characterization of
alcohol abuse as legally being a serious and persistent mental illness. Under these circumstances,
we do not address this issue further.

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rendered her so incapable of providing for her own care as to create a substantial
risk of serious harm to herself or others, and that her incapacity was permanent or
likely to be permanent.

¶3 A protective placement hearing was held in December 2021, during
which Dr. Long’s report was received into evidence without objection. Long’s
report noted that Piper had a history of alcohol abuse, frequent falls, and poor
self-care, such that she needed assistance “with most basic needs.”

¶4 Michelle Anderson, a social worker for Pierce County, wrote two
reports regarding Piper’s condition and testified at the 2021 hearing.4 Anderson’s
reports were received into evidence without objection. The reports stated that the
County had contact with Piper for several years following multiple reported
concerns regarding Piper’s physical welfare and that Piper had been hospitalized
five times in the last two months due to “ongoing weakness, alcohol use, inability
to walk and physical health decline.” Specifically, Anderson’s report noted that
Piper had been found “too weak to toilet herself” and was “sitting in her own
excrements.” Anderson’s report stated that “[w]ith each hospitalization[,] the
intensity of [Piper’s] infection and care needs increased.” The report also said that
there were multiple concerns that “without intervention the current situation at the
residence would result in the death of” Piper and/or her significant other, Ted, who
was also found sitting in his own excrements.

¶5 Anderson noted in her report that she tried to work with Piper to
arrange for home health services, but she was unsuccessful in doing so because

4
At the time of the 2021 hearing, Michelle Anderson’s last name was Meinen. For
convenience, we refer to her as “Anderson” throughout the remainder of this opinion.

3
No. 2024AP1367

Piper “refused to disclose necessary financial paperwork, or would refuse to sign
[a] release to get verifications for diagnoses,” and because providers were “not
willing” to work at her home due to Piper and Ted being “intoxicated, verbally
aggressive and fighting with each other.”

¶6 Piper testified at the 2021 hearing that the protective placement
process began after she fell and broke her arm. In addition, Piper generally
disagreed with the testimony of Dr. Long and Anderson.

¶7 The circuit court credited both Dr. Long and Anderson and found
that Piper suffered from impairments that were likely to be permanent and that her
impairments were due to the serious and persistent mental illness of depression
and “other like incapacities” in the form of alcohol abuse. The court also found
that Piper was incompetent, that she met the standard for protective placement
because she needed to have her ADLs managed, and that she would be at a
substantial risk of serious harm absent protective placement. Further, the court
noted that Piper needed to be placed in a facility with security measures due to her
history of eloping.

¶8 The circuit court noted that there had been a

significant amount of testimony regarding the condition of
the apartment and [Piper’s ability] to manage her activities
of daily living, specifically as they relate to personal care,
hygiene, toileting, etc. Additionally, there [is] the added
concern of the alcohol use … that may be contributing to
physical debilitation as well as cognitive decline.

The court was referring to Dr. Long’s testimony that Piper’s falls were related to
“her severe weakness” and “that her legs just wouldn’t be able to support her when
she tried to stand,” as well as the infections that resulted from Piper’s inability to
move. The court was also referring to Anderson’s testimony regarding her

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No. 2024AP1367

concern for Piper’s physical welfare due to Piper being “found multiple times
sitting in her own excrements that were causing infection and sepsis” and that
Piper failed to “thrive” in her own apartment due to “her unwillingness to
participate in physical therapy or occupational therapy to be able to get her body
moving again to get to the bathroom.”

¶9 Consistent with its factual findings, the circuit court entered an order
for Piper’s protective placement at an unlocked residential facility. The court also
entered an order appointing a guardian of the person and a guardian of Piper’s
estate.

¶10 In September 2022, the County filed a petition for annual review of
Piper’s protective placement, requesting that it continue for another year. Piper
requested a full hearing regarding the continued protective placement. The circuit
court ordered an evaluation of Piper and appointed Dr. Kevin Miller, a
psychologist, to conduct that evaluation. Piper did not request an independent
evaluation. See WIS. STAT. § 55.18(3)(b).

¶11 The continued protective placement hearing was held in
February 2023. At the hearing, Dr. Miller testified, and his evaluation report was
received into evidence without objection. In his report, Miller opined that Piper’s
memory, reasoning, emotional/behavioral functioning, and other executive
functioning were severely impaired. Miller noted that Piper was “unable to keep
herself healthy due to recurrent falls, dietary insufficiency, and recurrent
infections” and that her diagnoses included “Dementia, Alcohol Use Disorder,
Alcohol Hepatitis, Hypertension, and Depression.”

¶12 Doctor Miller opined in his report that Piper suffers from an
incapacity—major neurocognitive disorder—“due to alcohol dementia.” Miller’s

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report explained that Piper “did not believe she had any impairment” and that her
incapacity interfered with her ability to: (1) “receive and evaluate information”;
(2) “use information in a decision process”; (3) “communicate decisions”;
(4) protect herself “from abuse, exploitation, neglect or rights violation”; (5) meet
essential requirements” of her safety; (6) manage her “property and financial
affairs”; (7) “address risk of property being dissipated in whole or in part”;
(8) provide for her own support; and (9) “prevent financial exploitation.” Miller
explained that while Piper’s condition had improved since 2021, this improvement
was “the direct result of the services she ha[d] been provided” and that her
condition was permanent or likely to be permanent.

¶13 Cheryl Braun, a social worker for Pierce County, also testified at the
2023 hearing, and her report was received into evidence without objection. In her
report, Braun expressed concerns with Piper’s behavior, noting that she had been
physically and verbally aggressive toward staff and her roommate at her
placement. Braun also noted that Piper had eloped from her placement and that an
alarm was subsequently installed on her door to prevent further elopements.
Braun also noted that Piper “refuses help” with ADLs and that staff have to
provide “reminders and cues” for Piper regarding her ADLs.

¶14 Piper testified at the 2023 continued protective placement hearing.
She generally disagreed with the testimony provided by Dr. Miller, Anderson, and
Braun.

¶15 The circuit court credited Dr. Miller’s testimony in finding that Piper
continued to have “serious limitations” in her “memory,” “reasoning, executive
functionings, and emotional-behavioral functions,” as well as “moderate
impairments” in her “attention, sensory motor, and language and communication.”

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No. 2024AP1367

The court noted Miller’s testimony acknowledging that Piper’s condition had
slightly improved during her protective placement but opining that this
improvement was due to her being protectively placed and that any “significant
improvements” were “unlikely.” The court also acknowledged that Piper could
perform some ADLs on her own, but it found that there was a need for care and
custody of Piper due to her memory impairment causing danger “in terms of
cooking unsupervised, or wandering, driving, things of that nature.”

¶16 The circuit court based this latter finding on Miller’s testimony, in
which he expressed concern about Piper “wandering out of the facility or
apartment, getting lost,” and then suffering from exposure to the elements,
particularly during the winter. The court also based this finding on Braun’s
testimony that Piper “hasn’t bathed,” will not go to recommended medical
appointments, “won’t eat if the staff prepares meals for her,” and “won’t take her
medications”; that Piper needs assistance with ADLs “around the clock”; and that
Piper had “some deterioration,” in that she was having “increased bowel
accidents” and “some bleeding.”

¶17 The circuit court found that Piper “remains incompetent” and that
she continues to meet the standards for protective placement because she “needs
that primary residential care and custody as a result of the other like incapacities,”
specifically “the major neurocognitive disorder.” Consistent with these findings,
the court entered an order continuing Piper’s protective placement.

¶18 In September 2023, the County filed a new petition for an annual
review of Piper’s protective placement. Piper contested her continued protective
placement. The circuit court ordered that she be examined by Dr. Miller and
scheduled a hearing for February 2024. Again, Piper did not request an

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No. 2024AP1367

independent evaluation. See WIS. STAT. § 55.18(3)(b). This is the placement
petition that is the subject of the current appeal.

¶19 At the February 2024 hearing, Dr. Miller testified that he met with
Piper in November 2023 to evaluate her. According to Miller, after being
informed of her rights, Piper “made a number of negative responses” and then
elected to remain silent. Nonetheless, Miller characterized this examination as
“very productive,” as Piper behaved consistently with the history in her records
and with Miller’s previous examination of her. The County offered Dr. Miller’s
report into evidence, and Piper’s counsel objected, arguing that the report was
“entirely hearsay.” The circuit court overruled Piper’s objection, stating “[t]he
objection as to hearsay is overruled, as it is an expert report.”

¶20 Based on his examination of Piper, Dr. Miller opined that Piper
suffers from a major neurocognitive disorder and that this disorder places her at
risk of harm to herself through self-neglect and also places others at risk of harm
by being physically assaulted by Piper. Specifically, Miller noted that in the past
year, it was discovered that Piper might have a form of cancer for which she has
“refused” treatment; has had cellulitis or an infection; has not attended medical
appointments; and has had “dietary problems,” in that she “routinely” refuses to
eat food prepared for her and instead eats only white bread. Miller also noted that
there was an incident in which Piper threw a water bottle at emergency medical
services or law enforcement. Miller then surmised that Piper’s major
neurocognitive disorder is permanent or likely to be permanent.

¶21 Doctor Miller next opined that Piper requires residential care and
custody because of her history of “falls and head injuries as well as multiple
medical problems.” Miller also noted that Piper suffers from alcoholic

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No. 2024AP1367

encephalopathy, will suffer brain damage if she continues to drink alcohol, and
needs her current level of residential care and custody to alleviate the risk of her
drinking alcohol.

¶22 Jill Passofaro, an adult protection worker for the County, testified
that she took over as Piper’s caseworker after Braun left. Passofaro opined that
Piper “requires supervision with all of her [ADLs],” specifically with “hygiene,”
meal preparation, “ambulation,” and “personal cares.” Passofaro noted that Piper
had tried to elope from her placement “multiple times” so that she could return to
an apartment that she shared with Ted. Passofaro also expressed her concern
about Piper’s medical issues and noted that Piper has refused to see a doctor and
refuses to take medications.

¶23 Piper testified at the hearing and generally disagreed with
Dr. Miller’s and Passofaro’s testimony. Piper contended that she did not need any
assistance with ambulation, bathing, cooking, cleaning, or financial management.
During her testimony, Piper acknowledged that she is prescribed medications, but
she stated that she does not “need any” medications. She further explained that if
her protective placement were not continued, she planned to live with her brother
in Minnesota. Piper’s guardian ad litem, however, opined that it was in Piper’s
best interest that her protective placement continue.

¶24 The circuit court found that Piper suffers from a major
neurocognitive disorder and found Dr. Miller’s testimony credible. The court
noted that while Miller’s examination was short, Miller had conducted a previous
evaluation of Piper and had access to Piper’s records. The court noted that Miller
was “satisfied” that “the circumstances of [Piper’s] presentation ha[d] not

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No. 2024AP1367

changed,” which the court found to be consistent with Passofaro’s and Piper’s
testimony.

¶25 The circuit court found that Piper has a need for supervision and
monitoring due to her need for assistance with ADLs, specifically, ambulation,
transferring, eating, and hygiene. Given Piper’s needs, the court found that her
current protective placement is the “least restrictive environment consistent with
her needs.” The court ordered that Piper’s protective placement continue for
another year. Piper now appeals.

DISCUSSION

¶26 Piper argues that the County failed to present sufficient evidence to
establish that she is in need of a protective placement order. Specifically, Piper
argues that there was insufficient evidence to prove that she has a primary need for
residential care and custody, that she is incompetent, and that she cannot provide
for herself so as to create a substantial risk of harm to herself or others.

¶27 Our review of a protective placement order presents a mixed
question of law and fact. Douglas County v. J.M., No. 2022AP2035, unpublished
slip op., ¶16 (WI App Nov. 28, 2023), review denied (WI App Apr. 16, 2024).5
“The circuit court’s factual findings will not be overturned unless clearly
erroneous.” Walworth County v. Therese B., 2003 WI App 223, ¶21, 267 Wis. 2d
310, 671 N.W.2d 377 (citation omitted). A finding of fact is clearly erroneous
“when it is against the great weight and clear preponderance of the

5
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
No. 2024AP1367

evidence.… [A]lthough evidence may have presented competing factual
inferences, the circuit court’s findings are to be sustained if they do not go against
the great weight and clear preponderance of the evidence.” Hennessy v. Wells
Fargo Bank, N.A., 2022 WI 2, ¶38, 400 Wis. 2d 50, 968 N.W.2d 684 (citation
omitted). Whether the facts fulfill the legal standard for protective placement,
however, is a question of law that we review independently. Therese B., 267
Wis. 2d 310, ¶21 (citation omitted); J.M., No. 2022AP2035, ¶16.

¶28 In State ex rel. Watts v. Combined Community Services Board of
Milwaukee County, 122 Wis. 2d 65, 84, 362 N.W.2d 104 (1985), our supreme
court ruled that “there must be an annual review of each protective placement.”
Further, a full due process hearing is required whenever the ward or the ward’s
guardian requests it. Id. at 85. This full due process hearing is colloquially
referred to as a “Watts hearing.” At a Watts hearing, the circuit court or jury
“must find by clear and convincing evidence that the individual to be protected is
in need of protective placement because he or she” meets all of the following
standards:

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

(b) The individual 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.

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No. 2024AP1367

(d) The individual has a disability that is permanent or
likely to be permanent.[6]

WIS. STAT. §§ 55.10(4)(d), 55.08(1).

¶29 We begin our analysis by addressing a matter that is central to all of
the issues argued by Piper—namely, the applicability of evidence from prior
protective placement hearings to the current hearing. In J.M., we 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. This reality is especially true for
documentation submitted in conjunction with the petition
under review—such as the required comprehensive
evaluation from the initial placement and the required
annual written review pursuant to WIS. STAT. §§ 55.11(1)
and 55.18(1), respectively.

J.M., No. 2022AP2035, ¶20. We explained that

[t]o the extent the record shows relatively recent opinions
from qualified medical professionals … and there is no
evidence that the opinions therein are stale or that the
placed individual’s underlying conditions or needs have
materially changed, the court can rely upon those opinions,
subject to any contrary evidence that is submitted. If the
placed individual wishes to challenge the continuing
vitality of such opinions, he or she can request an
independent evaluation under WIS. STAT. § 55.18(3)(b)3.,
as well as call his or her own witnesses under WIS. STAT.
§ 55.10(4)(c).

J.M., No. 2022AP2035, ¶21.

6
Piper does not contest that she has a disability that is permanent or likely to be
permanent.

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No. 2024AP1367

¶30 We note that at the 2024 hearing, the circuit court expressly found
Dr. Miller’s testimony to be credible. Miller testified that the results of his
examination of Piper for that hearing were “consistent with all the history” that
Miller reviewed—including the examination he completed for the 2023 hearing—
and that many of Piper’s complaints from the examination for the 2023 hearing
remained the same in 2024. Piper does not argue that any of the adjudicated
evidence or opinions from the 2023 hearing are stale or that her conditions or
needs have, in fact, materially changed. Notably, Piper also did not request that
she be examined by an independent evaluator. See WIS. STAT. § 55.18(3)(b).

¶31 Under these circumstances, and consistent with J.M., we consider
the evidence that has been adjudicated—i.e., documentary evidence that was
admitted and testimony that was accepted by the circuit court and incorporated
into its findings following those hearings—at Piper’s initial 2021 protective
placement hearing and the 2023 continued protective placement hearing in
conjunction with the evidence presented at the 2024 hearing.7 Contrary to Piper’s

7
We pause to note that Douglas County v. J.M., No. 2022AP2035, unpublished slip op.
(WI App Nov. 28, 2023), review denied (WI App Apr. 16, 2024), was subsequently analyzed in
Ozaukee County v. S.S., No. 2024AP759-FT, unpublished slip op. (WI App Sept. 11, 2024),
review denied (WI App Jan. 16, 2025). In S.S., we concluded that “this court will not exclude
from its analysis the reports and hearing testimony related to [the subject individual’s] past
protective placements.” S.S., No. 2024AP759-FT, ¶9. We based this conclusion on J.M.’s
holding 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 due process hearing.” S.S., No. 2024AP759-FT, ¶8 (quoting
J.M., No. 2022AP2035, ¶20).

(continued)

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No. 2024AP1367

contention, our doing so does not “turn” Watts and WIS. STAT. § 55.18 “on their
heads.” At the 2024 hearing, the County was still required to prove that Piper
currently met the statutory criteria; it simply could rely on, and refer back to,
previously submitted and adjudicated evidence to explain the current situation that
Piper faced. In that regard, and for the reasons explained below, we disagree with
Piper’s assertions that the County “relied solely on [her] past” and “fail[ed] to

While the S.S. court overall did an excellent job analyzing J.M., we are concerned that
the S.S. court overstated the extent to which a circuit court can consider evidence from prior
Watts hearings. Specifically, we read J.M. as permitting a court to look only to evidence that has
previously been adjudicated—i.e., the reports that have been admitted into evidence and the
circuit court’s findings of fact. To the extent that the court’s findings of fact mirror a witness’s
testimony from a prior hearing, those findings can be considered by courts at future Watts
hearings. However, future courts cannot consider testimony regarding facts that were not adopted
by the circuit court and thereby have not been adjudicated. In this regard, and to clarify, it may
have been better had the word “current” been added before “due process hearing” in the
above-quoted sentence from J.M.

While this interpretation requires treating reports that have been admitted into evidence
differently from testimonial evidence—in that testimony from a prior hearing can only be relied
upon if mirrored by the prior court’s factual findings—this treatment is because the underlying
basis for considering the reports as adjudicative facts differs from the basis for considering
evidence resulting from testimony as adjudicative facts. Specifically, the pertinent reports are
filed with the court and become a part of the subject individual’s record, both for the protective
placement hearing for which the report is submitted and for the subsequent Watts hearings. See
WIS. STAT. § 55.18(1)(a) (noting that the review under § 55.18(1) “shall be made a part of the
permanent record of the individual”); cf Perkins v. State, 61 Wis. 2d 341, 346, 212 N.W.2d 141
(1973) (noting that courts “cannot take judicial notice of records that are not immediately
accessible to it or are not under its immediate control” (emphasis added)).

The basis for considering testimony that has been adopted by the circuit court in its
factual findings as an adjudicative fact, however, stems from the definition of “adjudicative fact.”
“Adjudicative facts are ‘simply the facts of the particular case,’ that is, ‘who did what, where,
when, how, and with what motive or intent.’” State v. Harvey, 2001 WI App 59, ¶7, 242 Wis. 2d
189, 625 N.W.2d 892 (citation omitted). “When a court or an agency finds facts concerning the
immediate parties … the court or agency is performing an adjudicative function, and the facts are
conveniently called adjudicative facts.” 7 DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES:
WISCONSIN EVIDENCE § 201.2 (4th ed. 2024) (citation omitted). Thus, it is not the testimony
itself that is an adjudicative fact; but, rather, the circuit court’s factual findings, in which it relied
upon certain testimony.

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No. 2024AP1367

connect[] the dots between [Piper’s] history and her current condition to show that
she still needs protective placement.”

I. Primary Need for Residential Care and Custody

¶32 Piper argues that while the County demonstrated that “residential
care is adequate” to meet Piper’s needs, it did not prove that she has a primary
need for residential care and custody. Further, Piper argues that “the [C]ounty did
not provide any facts on financial exploitation or any abuse or neglect happening
in the past that would have allowed the circuit court to base its decision on one of
those factors.” Piper also notes that the court did not discuss financial
exploitation, abuse, or neglect in reaching its decision.

¶33 A “primary need for residential care and custody” means that “a
person 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. As detailed
above, the evidence from the record leading up to the 2024 hearing outlined that
the County’s petition for protective placement was originally filed due to concerns
from Piper’s healthcare providers that she needed assistance with ADLs and to
protect her from self-harm, due to her alcohol abuse and self-neglect. At the 2024
hearing, Dr. Miller specifically testified that Piper refused to seek medical
attention for a cancer from which she may be suffering, she refused to attend
medical appointments, she had an infection or cellulitis, and there were dietary
concerns due to her refusing to eat food prepared for her. Miller and Passofaro
also stated that Piper needs residential care and custody because of her history of

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No. 2024AP1367

falls, her medical problems, and to alleviate the risk of her drinking and suffering
brain damage due to her alcoholic encephalopathy.

¶34 We conclude that the entire protective placement record, including
the evidence presented at the 2024 hearing, shows that Piper continues to have a
primary need for residential care and custody.

¶35 Piper attempts to discount the foregoing by pointing to evidence that
her condition improved during the year preceding the 2024 hearing and that she is
physically capable of performing certain tasks related to personal hygiene and
feeding herself. However, Piper does not assert that the circuit court’s findings
relying on the above evidence are clearly erroneous. While there was evidence
that Piper could perform some tasks by herself, “[t]he weight of the testimony and
the credibility of witnesses are primarily determinations to be made by the finder
of fact … and where more than one reasonable inference can be drawn from the
credible evidence, the reviewing court must accept the one reached by the fact
finder.” Landrey v. United Servs. Auto. Ass’n, 49 Wis. 2d 150, 157, 181 N.W.2d
407 (1970).

¶36 The circuit court credited the testimony and concerns of Dr. Miller,
Braun, and Passofaro. Specifically, the court found that Piper still requires “24/7”
supervision for ambulation, her medical needs, food, and hygiene. These findings
are not clearly erroneous, and we agree that these findings support the ultimate
conclusion that Piper has a primary need for residential care and custody.

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No. 2024AP1367

II. Competency

¶37 Piper next argues that the County presented insufficient evidence to
prove that she is incompetent.8 Piper contends that the testimony presented at the
2024 hearing shows merely that she is frustrated with the staff at the facility where
she is placed and that she feels “abused and mistreated.” She argues, however,
that this evidence does not prove her incompetence.

¶38 Incompetence for the purposes of a guardianship of the person and a
protective placement is established by proving, by clear and convincing evidence,
that the following elements are met:

1. The individual is aged at least 17 years and 9 months.

2. For purposes of appointment of a guardian of the person,
because of an impairment, the individual is unable
effectively to receive and evaluate information or to make
or communicate decisions to such an extent that the

8
We pause to note that WIS. STAT. § 55.08(1)(b)—which provides that the individual for
whom protective placement is sought must be “an adult who has been determined to be
incompetent by a circuit court”—by itself appears to be ambiguous as to whether a circuit court
must reevaluate competency for each continued protective placement hearing or whether this
element may be satisfied by a previous finding of incompetency, such as the incompetency
finding that is required for a guardianship.

Neither Piper nor the County has fully briefed this issue. Piper merely asserts, without
any reference to legal authority, that “[w]ithout an ongoing demonstration of incompetence, a
request for continued protective placement necessarily fails.” The County, in turn, merely
responds that Piper’s “conduct and behavior during court activities only demonstrate continued
incompetency.”

We note that WIS. STAT. § 55.075(3) provides: “If the individual is adjudicated
incompetent in this state more than 12 months before the filing of an application for protective
placement or protective services on his or her behalf, the court shall review the finding of
incompetency.” Further, this court has “squarely reject[ed]” the argument that a petitioner need
not prove incompetency at continued protective placement hearings, as it is possible for a
person’s incompetence to change over time. Sheboygan County v. Terry L.M.,
No. 2014AP2010, unpublished slip op., ¶¶8-9 (WI App Apr. 1, 2015). Accordingly, we consider
whether the County presented sufficient evidence to prove Piper’s incompetence.

17
No. 2024AP1367

individual is unable to meet the essential requirements for
his or her physical health and safety.

….

4. The individual’s need for assistance in decision making
or communication is unable to be met effectively and less
restrictively through appropriate and reasonably available
training, education, support services, health care, assistive
devices, a supported decision-making agreement under
[WIS. STAT.] ch. 52, or other means that the individual will
accept.

WIS. STAT. § 54.10(3)(a);9 see also Wood County v. P.J.L., No. 2024AP2098-FT,
unpublished slip op., ¶¶13-25 (WI App Jan. 9, 2025) (analyzing whether the
subject was incompetent—for the purposes of a contested protective placement—
by analyzing the elements listed above).

¶39 We conclude that Piper is incompetent under WIS. STAT.
§§ 54.10(3)(a) and 55.08(1)(b). Piper’s age is not at issue, and she does not
contest that she has been diagnosed with a major neurocognitive disorder resulting
from her alcohol abuse, which meets the applicable definition of “other like
incapacities” in WIS. STAT. § 54.01(22).10

¶40 Some of the ongoing concerns for Piper have involved her hygiene
and ambulation—specifically as they relate to her sitting in her own excrement,
leading to infections—as well as her causing further brain damage to herself by

9
WISCONSIN STAT. § 54.10(3)(a) contains additional requirements, not relevant to this
appeal, for establishing incompetence for the purposes of appointment of a guardian of the estate.
See § 54.10(3)(a)3.
10
The term “[o]ther like incapacities” is defined as “those conditions incurred at any age
which are the result of accident, organic brain damage, mental or physical disability, or continued
consumption or absorption of substances, and that produce a condition that substantially impairs
an individual from providing for his or her own care or custody.” WIS. STAT. § 54.01(22).

18
No. 2024AP1367

drinking alcohol. Further, Dr. Miller testified that as a result of Piper’s major
neurocognitive disorder, these concerns are ongoing; that Piper had suffered from
falls and from cellulitis or an infection within the past year; that Piper refuses to
attend medical appointments and to seek medical attention for her possible form of
cancer; that she demonstrates a persistent unwillingness to cooperate with those
who have been tasked with caring for her, both before and during her protective
placement; and that Miller’s concerns arise from Piper’s major neurocognitive
disorder. Both Miller and Passofaro testified that Piper’s current environment is
the least restrictive environment for her, which supports a finding that Piper’s
needs cannot be effectively met in a less restrictive environment. Therefore,
despite Piper having shown some improvement in her current placement setting,
this evidence supports a finding that she cannot meet the essential requirements for
her physical health and safety due to her impairment.

III. Substantial Risk of Serious Harm

¶41 Piper lastly argues that the County presented insufficient evidence to
prove that she cannot provide for herself so as to create a substantial risk of
serious harm to herself or others. Piper contends that the evidence “proved only”
that she “can sometimes disagree with staff and be argumentative.” Piper also
asserts that Dr. Miller did not present evidence that she would drink alcohol if she
were not protectively placed. In addition, she argues that while she was “skeptical
of treatment” for her possible cancer, that skepticism does not demonstrate her
inability to live on her own. Finally, Piper also asserts that Miller and Passofaro
stated that she is able to feed herself.

¶42 WISCONSIN STAT. § 55.08(1)(c) requires that a subject for whom
protective placement is sought must be “so totally incapable of providing for his or

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No. 2024AP1367

her own care or custody as to create a substantial risk of serious harm to himself or
herself or others” “[a]s a result of developmental disability, degenerative brain
disorder, serious and persistent mental illness, or other like incapacities.”

¶43 A person is totally incapable of providing for his or her care under
[WIS. STAT.] § 55.08(1)(c) if 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. The “custody” alternative in § 55.08(1)(c), in turn, 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.” Id. “The risk of harm must be substantial. Mere speculation
as to difficulties [the subject] may encounter is not sufficient. Specific harm must
be foreseeable to fulfill this requirement. Furthermore, the foreseeable harm must
be serious.… [M]inor accidents, injuries and illness are not sufficient to satisfy
this requirement.” Zander v. County of Eau Claire, 87 Wis. 2d 503, 514-15, 275
N.W.2d 143 (Ct. App. 1979).11

¶44 Turning to the relevant evidence, the circuit court determined that
Dr. Miller credibly testified that due to Piper’s alcoholic encephalopathy, if Piper
ingests “any alcohol at this point,” it will cause her more brain damage, and, as a
result, Piper needs residential care and custody to alleviate the risk of her drinking.
Brain damage certainly qualifies as a substantial and specific harm, and, given this

11
Before delving into the most probative evidence, we reject Piper’s characterization of
the evidence as “prov[ing] only” that she “can sometimes disagree with staff and be
argumentative.” Most notably, Piper does not just generally disagree and argue with her group
home’s staff; she repeatedly argues with them over what she needs to remain healthy and safe,
including her need for medical treatment. In other words, Piper’s own repeated and strident
dismissiveness of her history and conditions is itself a problem for her current well-being.

20
No. 2024AP1367

credited testimony in conjunction with the other evidence regarding Piper’s history
of drinking, it is foreseeable that Piper will drink alcohol if she is not protectively
placed.

¶45 Piper stated that she is “not an alcoholic” and that she is “not a
drinker.” These statements, however, were directly contradicted by Dr. Miller’s
reports and testimony, in which he diagnosed Piper with alcohol use disorder,
alcohol hepatitis, alcohol dementia, and alcoholic encephalopathy.12 While Piper
may disagree with Miller, the circuit court is “the sole arbiter of credibility issues
and will be sustained if facts in the record support the court’s conclusions.” See
State v. Sloan, 2007 WI App 146, ¶21, 303 Wis. 2d 438, 736 N.W.2d 189.
Regardless, we also note that Piper herself stated during the relevant Watts hearing
that she was “going to have a brandy” due to her fiancé’s death. Accordingly, we
agree with the court’s finding that Piper is so totally incapable of providing for her
own care as to create a substantial risk of serious harm to herself.

CONCLUSION

¶46 In summary, Piper’s arguments on appeal essentially ask us to
reweigh the evidence and to find her credible. Piper’s arguments fail. There is
ample evidence—both from the prior protective placement hearings and the 2024
hearing—to support the circuit court’s factual findings, which themselves support

12
We pause to note that Dr. Miller’s reports and testimony go far beyond merely
diagnosing Piper with alcoholism. Miller’s November 2023 report diagnoses Piper as suffering
from “Major Neurocognitive Disorder due to Multiple Etiologies including but not limited to
alcoholic encephalopathy.” Miller testified that alcoholic encephalopathy “is basically swelling
and damage to the brain due to alcohol” and that Piper will cause further brain damage to herself
if she ingests “any alcohol at this point.” Accordingly, Miller’s opinions spoke to physical risks
of harm to Piper from drinking any further alcohol.

21
No. 2024AP1367

the legal determination that Piper meets the standards for protective placement.
We therefore affirm the order continuing Piper’s protective placement.

By the Court.—Order affirmed.

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

22