2022 WI App 62
Wis. Ct. App.2022Background
- Racine County petitioned for temporary and permanent guardianship and protective placement for P.B.; temporary orders were entered and a final hearing was scheduled for June 2, 2021 to be held via Zoom.
- A guardian ad litem (GAL) was appointed; the GAL interviewed P.B., concluded she could attend in court, did not waive attendance in writing, and filed his report after the hearing.
- At the Zoom hearing P.B. participated from the facility; her video connection failed mid-hearing and she proceeded by audio only; counsel appeared remotely from another location.
- The circuit court found P.B. in need of guardianship and protective placement and issued orders; P.B. moved to vacate arguing the statutes required her in-person attendance and the GAL had not waived it.
- The circuit court denied the motion, reasoning P.B. had not asserted a right to physical presence before the hearing; the Court of Appeals reversed: it held the statutes require physical presence, the County failed to ensure it, the GAL did not waive attendance, and the court lacked competency to proceed; the orders were vacated and remanded.
Issues
| Issue | Plaintiff's Argument (P.B.) | Defendant's Argument (County) | Held |
|---|---|---|---|
| Whether statutory requirement that the proposed ward “attends the hearing” requires physical, in-person presence | “Attends” means physically present in courtroom; statutes and related provisions protect right to be present | Remote appearance via video (Zoom) satisfies attendance; §885.60 allows videoconferencing and non‑objection equals acquiescence | The statutes require physical presence; P.B. had right to be in the courtroom and was not ensured in-person attendance |
| Whether §885.60 permits substituting video appearance without a waiver or written consent | §885.60 is subject to statutory attendance rights and cannot override them | §885.60 authorizes videoconferencing and the County relied on it; objection rules in §885.60(2)(d) apply | §885.60 is subject to the right to physical presence; its objection provision addresses witness testimony, not a respondent’s own attendance |
| Consequence of failing to ensure in-person attendance when no GAL waiver exists | Failure to ensure attendance strips the court of competency to proceed | Court retained competency because hearing proceeded and no contemporaneous objection was made | Failure to ensure in-person attendance without a valid GAL waiver causes the circuit court to lose competency to rule; orders vacated |
Key Cases Cited
- Jefferson County v. Joseph S., 330 Wis. 2d 737 (holds failure to ensure respondent’s attendance absent waiver divests court of competency)
- State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 271 Wis. 2d 633 (sets Wisconsin statutory‑interpretation framework)
- State v. Soto, 343 Wis. 2d 43 (discusses §885.60 derivation from Supreme Court rule and waiver principles)
- Knight v. Milwaukee County, 256 Wis. 2d 1000 (recognizes legislative judgment protecting proposed ward’s input at competency proceedings)
- Walworth County v. Therese B., 267 Wis. 2d 310 (explains the substantial liberty interest at stake in protective placement)
- Bryn v. Thompson, 21 Wis. 2d 24 (observes difficulty of judicial determinations regarding competency)